A TREATISE
ON THE
AMERICAN LAW
OF
ELECTION S.
BY
GEO. W. McCRARY,
OF THE IOWA BAR, MEMBER OF THE HOUSE OF REPRESENTATIVES OF THE UNITED,
STATES, AND LATE CHAIRMAN OF THE COMMITTEE OF
ELECTIONS OF THAT BODY.
KEOKUK, IOWA:
R. B OGDEN, PUBLISHER.
CHICAGO:
E. B. MYERS, LAW BOOKSELLER.
I875.




Entered according to the act of Congress, in the year 1875,
By GEO. W. McCRARY,
in the Office of the Librarian of Congress, at Washington.




TO THE HONORABLE'SAMUEL F. MILLER LL. D.,
ASSOCIATE JUSTICE SUPREME COURT UNITED STATES, THIS TREATISE
IS MOST RESPECTFULLY DEDICATED.
HIS GREAT LEARNING AND ABILITY AS A LAWYER, AND AS A
TUDGE.; HIS HIGH CHARACTER AS A MAN AND AS A CITIZEN;
AND THE LASTING OBLIGATIONS I AM UNDER TO HIM FOR
GENEROUS AID AND INSTRUCTION AS MY TEACHER IN
THE LAW, AND FOR AN EARNEST FRIENDSHIP CONTINUING THROUGH MANY YEARS, ALL COMBINE
TO MAKE THIS RECOGNITION AND ACKNOWLEDGMENT BOTH A DUTY AND A PLEASURE,
ON THE PART OF HIS FRIEND AND
PUPIL.
THE AUTHOR.








PRE FACE
The subject which I have imperfectly treated in the following pages
is of great importance, especially to the people of the United States.
In a country like ours, where all the powers of government reside with
the people, and are delegated to representatives chosen by means of the
ballot, and who serve only for short periods, making necessary a frequent appeal to the popular will; and where the decisions reached by
this means are often so important, it is inevitable that controversies
growing out of elections should be numerous. And it is manifest that
it is a matter of great consequence, that the principles which are to control the determination of controversies of this character should be un-,derstood, not only by the legal profession, but also by the people generally.
Perhaps the most important purpose to be subserved by the publication of books of the law, is the prevention of litigation by informing the people as to their rights and duties; and it is hoped that this
humble contribution to the law of elections may serve this purpose, by
diminishing somewhat the number of election contests in the future,
while at the same time affording some valuable aid and assistance in
their proper decision, when they do arise. It has been my aim to bring
together, in a convenient form, the adjudications of the Courts and other
tribunals of this country, touching the subjects treated, among which
are the following:
The qualifications of electors.
The qualifications, powers and duties of election officers.
The time, place and manner of holding elections.-Notice.
The primafacie right to an office.
Eligibility to office.-Tenure.
Practice and Evidence in contested election cases.
Imperfect ballots.
Violence and intimidation.




Fraud and illegal voting.
Prosecutions for violation of election laws.
Civil liability of election and registration officers, for a failure to
discharge their duties.
The organization of legislative bodies, and the power and authority
of such bodies over their members.
A considerable experience in the investigation of cases of contested
elections, has caused me to feel the need of some such treatise as I have
attempted to prepare. The law upon this subject, as determined by th e
courts and legislative bodies of this country, is only to be found scat.
tered through many hundreds of volumes of reports, and the labor of
collecting and examining them is necessarily very great. It has been
my endeavor in the preparation of this volume, to state briefly and
clearly the principles or rules which have been settled, and to cite the
authorities where they will be found discussed more at length. I have
myself entered into discussion only when considering unsettled or disputed points.
I have entitled this book The AMERICAN Law of Elections. The authorities cited are chiefly American authorities. Upon this subject we
are, from the very necessities of the case, building up an American
common law.
I do not say that English authorities are of no value upon this
branch of the law. On the contrary, I have cited them freely whenever I have deemed them applicable and useful. I have, however, en —
deavored to keep steadily in view the fact that the genius of our institutions, the character of our political system, and the principles upon
which the right of suffrage in this country is founded, all differ so radically from those of England, as to diminish very greatly the value of
English precedents in election cases, and I have labored to show that
our own tribunals have, by a long course of judicial decisions, settled
the law of this country, as it relates to the questions I have treated,
upon a firm and solid basis.
KEOKUK, IOWA, I875.




THE AMERICAN LA'W
OF
ELECTIONS.
CHAPTER I.
OF THE QUALIFICATIONS OF VOTERS.
~ 1. Subject to the limitation contained in the Fifteenth Amendment to the Constitution of the United
States, the power to fix the qualifications of voters
is vested in the States. Each State fixes for itself
these qualifications, and the United States adopts the
State law upon the subject, as the rule in Federal
Elections, as will be seen by reference to Sec. II of
Art. I of the Constitution, which provides as follows:
"The House of Representatives shall be composed of members chosen every second year by the
people of the several States, and the electors in each
State shall have the qualifications requiredfor electors
of the most numerous branch of the State Legislature."
The qualifications of voters for presidential electors, are also to be fixed by the States, as will be
seen by reference to Sec. I of Art. II of the Constitution, which provides that " each State shall appoint, in such manner as the legislature thereof may




8       OF THE QUALIFICATIONS OF VOTERS.
direct, a number of electors equal to the whole number of Senators and Representatives, to which the
State may be entitled in the Congress."
Inasmuch as Representatives in Congress, and
Presidential electors, are the only Federal officers to
be chosen by popular ballot, it is manifest that all
controversies concerning the right of individuals to
vote, whether at a State or a Federal election, must
be determined by reference to the local or State
law upon this subject, provided, of course, that such
local or State law is not in conflict with any provision of the Constitution of the United States.
~ 2. As already intimated, the power of the State
government to prescribe the qualifications of voters,
is limited by the terms of the Fifteenth Amendment
to the Constitution of the United States, which provides as follows:
"The right of citizens of the United States to
vote shall not be denied or abridged by the United
States, or by any State, on account of race, color or
previous condition of servitude.
"The Congress shall have power to enforce this
article by appropriate legislation."
The effect of this constitutional provision most
clearly is to render absolutely null and void all provisions of a State constitution or State law, which
come in conflict with the amendment itself, or with
any statute passed by Congress to enforce it, and
which is appropriate for that purpose. In point of
fact the adoption of this amendment abrogated certain provisions found in the constitutions and laws of
most of the States, which provided, among other
things, that all' voters should be while male citizens.




OF THE QUALIFICATIONS OF VOTERS.       9
In pursuance of the power conferred upon Congress by the latter clause of the Fifteenth Amendment, that body has enacted certain laws to protect
the newly enfranchised voter in the exercise of his
rights. These acts of Congress will be found in full
in the appendix to this volume.
~ 3. The right of suffrage is not a natural right,
nor is it an absolute, unqualified personal right. It
is a right derived in this country from constitutions
and statutes. It is regulated by the States, and their
power to fix the qualifications of voters, is limited
only by the provisions of the Fifteenth Amendment
to the Constitution, which forbids any distinction on
account of "race, color, or previous condition of
servitude."  Huber vs. Reily, 53 Penn. State R. 115.
Ridley vs. Sherbrook, 3 Cold, 569. Anderson vs. Baker, 23 Md. 531.  Brightley's Election Cases, 27.
See also 1 Story Const. Ch. 9, Sec. 581, 582.
~ 4. The qualifications of voters are not uniform
in all the States, but they are similar. Among those
which are generally required, are the following:
1. Citizenship, either by birth or naturalization.
2. Residence for a given period of time in the
State, County, and voting precinct.
3. Age. In all the States it is required that a
voter shall have reached the age of twenty-one
years.
4. In some States the payment of taxes, and in
many States registration.
5. Freedom from the infamy of having been convicted of an infamous crime,
6. That no idiot or lunatic shall vote.
~ 5. The Legislature of a State cannot add to the




10     OF THE QUALIFICATIONS OF VOTERS.
qualifications of an elector, as prescribed by the
State constitution.  Where the constitution prescribes the qualifications, whoever possesses them,,
has a constitutional right to vote, and of this right
he cannot be deprived by legislative enactment.
This rule has been applied in the construction of the
constitution of Pennsylvania, which declares affirmatively that all persons possessing certain qualifications shall be entitled to vote. The Legislature of
that State, in 1866, passed an Act, declaring, in substance, that no person should be permitted to vote,
who, having been drafted into the Military Service,
and duly notified, had failed to report for duty. But
it was held by the Supreme Court of that State, that
this was an attempt of the Legislature to disfranchise
those to whom the constitution had given the rights
of electors, and that the act was therefore unconstitutional and void. McCafferty vs. Guyer, 59 Pa.
State R. 109, Brightley's Election Cases, 44.
~ 6. While the Legislature cannot add to, abridge
or alter the constitutional qualifications of voters, it
may, and should, prescribe proper and necessary
rules for the orderly exercise of the right resulting
from  these qualifications.  The Legislature must
prescribe the necessary regulations as to place,
mode, manner, &c. But such regulations are to be
subordinated to the enjoyment of the right itself.
Page vs. Allen, 58 Pa. State R. 338, 347, vide also
Patterson vs. Barlow, 60 do 54.
It has been held under the authority of the rule
in McCafferty vs. Guyer, that an act of the legislature declaring that a voter who has removed from
his district within ten days of the election may vote,




OF THE QUALIFICATIONS OF VOTERS.       11
in the district removed from, is unconstitutional and
void. This, for the reason that the constitution requires, that the voter should have resided in the
election district "ten days immediately preceding the
election." Thomzpson vs. Ewing, 1 Brewst. 103. And
in State vs. Adams, 2 Stewart 239, the Supreme,
Court of Alabama held that no department of the
government, nor all of them combined, have the
power to divest an individual of his constitutional
right of suffrage.
~ 7. The power to provide for the orderly exercise
of the right of suffrage, which we have seen belongs
to the State legislature, includes the power to enact
registry laws, and to prohibit from voting, persons
not registered. It is now generally admitted that
these laws do not add to the constitutional qualifications of voters, and are therefore not invalid. Capen
vs. Foster, 12 Pick 485, Brightley's Election Cases, 51.
~ 8. But it is nlanifest, that under color of regulating the mode of exercising the elective franchise,
it is quite possible to subvert or injuriously restrain
the right itself. And a statute which clearly does
either of these things, must of course be held invalid, on the ground that it seeks to deprive the citizen
of his constitutional right.
For example, a registry act which should undertake to require a longer residence, prior to the time
of voting, than that required by the constitution, or
which should require the payment of taxes not required to be paid by constitutional provision, or
which should impose upon a particular class of citizens, conditions and requirements not required of
all others, would be void. The right to vote must




12      OF THE QUALIFICATIONS OF VOTERS.
not be impaired by the regulation. It must be regulation purely, and not destruction.
~ 9. It being conceded that the power to enact a
registry law, is within the power to regulate the exercise of the elective franchise, and preserve the
purity of the ballot, it follows that an election held
in disregard of the provisions of a registry law must
be held void. In Ensworth vs. Albin el. ad., 44 Mo.
347, an election was set aside upon the ground that
there was no registration whatever, although the
statute required registration as an indispensable
pre-requisite to an election. Ithas been suggested,
that this doctrine puts it in the power of the board
of registration to defeat an election, by failing to
meet, and refusing altogether to discharge their official duties. But it is hardly safe to attempt to test
the validity of a statute by presupposing a case so
extreme and so improbable as the refusal of a sworn
officer of the law to act. Should such a case occur,
of course a mandamus would lie to compel the recusant officer to discharge his duties, and severe
penalties ought to, and it is believed generally do,
follow any such failure to discharge an official duty
-so grave and important.
Upon this point the Supreme Court of Missouri,
in Ensworth vs. Albin el. al., say: "We are referred
to no case where a law has been held unconstitutional for the reason that the officers required to
execute it, had neglected their duty, or abused their
trust, nor are we aware of any principle on which to
base such a decision."
~ 10. A case may occur where a portion of the legal voters have, without their fault, and in spite of due




OF THE QUALIFICATIONS OF VOTERS.        1a
diligence on their part, been denied the privilege of
registration. In such a case, if the voter was otherwise qualified, and is clearly shown to have perform —
ed all the acts required of him by the law, and to:
have been denied registration, by the wrongful act
of the registering officer, it would seem a very unjust
thing to deny him the right to vote.  In elections for
State officers, however, under a constitution or statute, which imperatively requires registration as a
qualification for voting, it may be that the voter's only remedy would be found in an action against the
registering officer for damages.  Peoiple vs. Kopplekam, 16 Mfich. 342.  State vs. Slumpf, 23 Wis. 630.
Stale vs. felmantel, 21 W/is. 566.
Where, however, a portion of the voters of a.
given precinct are thus unjustly denied the privilege
of registration, and another portion, are duly registered, and permitted to vote, no doubt is entertained
but that the entire poll should be rejected, if the
votes of the former class cannot be counted, and
if they are sufficiently numerous to affect the result.
~ 11. In the absence of any positive law making
registration, imperative, as a qualification for voting,
it is a very plain proposition that the wrongful refusal of a registering officer to register a legal voter,
who has complied with the law, and applies for registration, ought not to disfranchise such voter. The
offer to register in such a case is equivalent to registration. This would be held to be the law upon the
well settled principle, that the offer to perform an
act which depends for its performance upon the action of another person, who wrongfully refuses to
act, is equivalent to its performance. The Congress




14       OF THE QUALIFICATIONS OF VOTERS.
of the United States has, however, provided against
injustice of this kind by a positive statute, which
must, of course, (if held valid,) control all federal
elections. By the 3d Section of the Act of May
31st, 1870, (16 Stat. at Large, p. 140,) it is provided
as follows:
"That whenever, by or under the authority of the,constitution or laws of any State, or the laws of any
territory, any act is, or shall be required to be done
by any citizen as a pre-requisite to qualify or entitle
him to vote, the offer of any such citizen to perform
the act required to be done as aforesaid, shall, if it
fail to be carried into execution by reason of the
wrongful act or omission of the person or officer
charged with the duty of receiving or permitting
such performance, or offer to perform, or acting
thereon, be deemed and held as a performance in
law of such act, and the person so offering and failing as aforesaid, and being otherwise qualified, shall
be entitled to vote in the same manner, and to the
same extent as if he had in fact performed such act."
It is undoubtedly necessary that a person who,
having been refused registration, seeks to have his
vote counted under this statute, should prove that
he actually and personally applied to the proper
board or officer for registration, and offered to make
such proof, or perform such acts as the law required
of him; that he. was in fact legally qualified to vote
and entitled to registration, and that registration was
refused. In other words, it must appear that the
voter did, or offered to do, all that the law required
at his hands, and that his failure to be registered
was the fault of the board or officer of registration.




OF THE QUALIFICATIONS OF VOTERS.       15
Nor is it enough that he demanded registration of
the proper officer or board, and was refused. It must
"also appear, before his vote can be counted as if
cast, that he offered his vote at the proper time and
place, or used proper diligence in endeavoring to.do so.
~ 12. It has been held that the aforesaid act of
Congress of 31st May, 1870, does not interfere with
the laws of the several States, which prescribe the
-qualifications of voters, except so far as they are
founded upon the distinction of race, color or previous condition of servitude.  (Efxparle McllZwee, 3
American Law Times, 251, Brightley's Lead. Cases on
Elections, 65.)  And the same doctrine was laid down
by the District Court U. S. for District of Oregon,
in the case of McKay vs. Campbell, 2 Abbott U. S.
Rep. 120. It was determined in this latter case that
in a proceeding to recover the penalty provided by
the second section of said act, it must be averred
among other things, that the denial of right was on
account of the race, color or previous condition of
servitude of the plaintiff.
~ 13. It is still, however, a disputed question,
whether the act aforesaid should be so construed as
not to afford relief to a citizen, who is deprived of his
right to vote or to be registered, for a cause other
than race, color or previous condition of servitude.
Judge Jackson, of the District Court of the U. S.
for the District of West Virginia, took the ground
that said act was designed to protect all citizens
without distinction in the right of suffrage, and he
>enforced this view as follows:
"The last clause of the 14th amendment to the




16      OF THE QUALIFICATIONS OF VOTERS.
Constitution of the United States, provides that no
one shall be denied the equal protection of the laws.
In framing this act, Congress must have had this,
provision of the Constitution in view. It cannot be
supposed that it would escape their attention; it
must therefore be conceded, that all citizens are, under the fundamental law of the land, entitled to equal
privileges, and the equal protection of the law; the
latter right is embraced in the very words of the
amendment. It is incredible to suppose that Congress intended, by the passage of this act, to do so
vain a thing as to enact a law purely for the benefit
of one class of citizens, to the manifest neglect and
prejudice of another, thus attempting by legislation
to deprive them of the equal privileges and the equal
protection of the law, as guaranteed by the Fourteenth Amendment."  (3 Am. Law Times, 254-5.)
~ 14. And this view is strengthened by an examination of the act itself. It would seem that its aim
and purpose is to do more than protect persons of
color, alone, in their right to vote. Thus by section
2 it is provided that, when "any act is required to be
done as a pre-requisite or qualification for voting'"
the proper person or officer " shall give to all citizens
of the United States the same and equal opportunity to perform such pre-requisite, and to become
qualified to vote." This could hardly have been
framed with a view to the protection of one class of
citizens above another. The recent decision of the
Supreme Court of the United States, in the Slaughter House cases, (16 Wallace,) is not necessarily in
conflict with this view. This latter case presented
the question whether an act of the legislature ol




OF THE QUALIFICATIONS OF VOTERS.     17
Louisiana, to regulate the business of slaughtering
animals in and near the city of New Orleans, was in
conflict with the 14th Amendment to the Constitution, because of the creation thereby of a monopoly.
It is true that in the opinion of the Court delivered
by Mr. Justice Miller, it is shown that the recent
amendments to the constitution were intended especially, if not exclusively, for the protection of the
rights of the freedmen, and doubt is expressed as
to whether "any action of a State not directed by
way of discrimination against the negroes on account
of their race, will ever be held to come within the
purview of this provision." It is also said that " the
Fourteenth Amendment is so clearly a provision for
the colored race, that a strong case would be necessary for its application to any other."
The point decided, however, was as to the power
of the State Legislature to pass the act under discussion, and the question of the power of Congress.
to pass laws to protect the citizen in his right to vote,
was of course not touched, because no such question
arose in the case.
~ 15. The Fourteenth Amendment to the Constitution declares that "no State    *    *    *
shall deny to any person the equal protection of the
laws," and gives Congress power to enforce this
provision by appropriate legislation. It is yet an
open question how far Congress may go in the enforcement of this provision, and any extended discussion of the subject in -advance of its settlement
by the Supreme Court, is perhaps not desirable.
Very much will depend upon the meaning of the
word " State, " as used in the clause above quoted.
2




18     OF THE QUALIFICATIONS OF VOTERS.
No State shall deprive any person, &c. Are we to
understand this as prohibiting only such acts as are
done by the complete State government, acting
through all its departments? Clearly not. For, if so,
a class of citizens or of persons, may be effectually
deprived of the equal protection of the. laws, by the
action of some one of the departments of the State
government, and no remedy can be had, because the
act is not that of the State. If the word " State,"
means all the departments of the State government,
then it is easy to see that the constitutional provision under consideration, may be rendered entirely
nugatory. Thus the Legislature may fail to provide
the necessary laws for the protection of a class of
persons, or the judiciary may refuse to enforce such
laws if enacted, or the executive may so administer
them as to deny the equal protection guaranteed by
the Constitution.  It would seem, therefore, that
whenever, by the action of any department or officer
of the State, any person or class of persons are deprived of the equal protection of the laws, this
clause of the Constitution is violated, and for any
and all such cases Congress may provide a remedy.
The State must be held to have denied the equal
protection of the laws, when her officers, servants or
agents have done so.
~ 16. It must be conceded that the question of
the nature and extent of the power of Congress
under the Constitution, as recently amended, to enact laws to protect and enforce the right to vote in
the several States, is one of great importance, and
of considerable difficulty. As we have seen, this
question has not yet been settled by a decision of




OF THE QUALIFICATIONS OF VOTERS.         19
the Supreme Court, although the decision of that
Court in the Slaughter House cases, certainly indicates that the Court is inclined to construe the recent amendments to the Constitution, as conferring
power upon Congress to protect only the newly enfranchised people, and not as authorizing Congress
to legislate generally for the regulation and enforcemeit of the right of suffrage in the States. And
this view is fully sustained by the very~ recent decision of the Circuit Court of the United States for
Louisiana.  (The United Stales vs. Cruiks hank, 13,
Am. Law Reg. (NV. S.) 630.)  In this case a very
learned and elaborate opinion was pronounced by
Mr. Justice Bradley, of the Supreme Court, and as
this is the latest and most authoritative exposition of
the law upon this subject, it will doubtless be generally adopted and followed, unless it shall be reversed
or modified hereafter by the Supreme Court. (a)
~ 17. By the fourth section of the first article of
the Constitution, Congress is empowered to make
" regulations " concerning the "times, places and
manner of holding elections for Representatives in
Congress." If the power to provide for a fair registration and election for Representatives in Congress, is not derived from the Fourteenth Amendment, may it not be found here? Everything which
pertains to the manner of holding such elections, is
included within the power here conferred, and no
sound reason is perceived why a statute requiring
that all legal voters at such elections shall be en(a) This case was one arising upon an indictment framed under the
Act of Congress of May 31, I870, commonly called the enforcement
act.




20      OF THE QUALIFICATIONS OF VOTERS.
titled to registration, and to be permitted to vote
upon equal terms, is not a regulation of the manner
of conducting the election.
This question of the power of Congress to pass
laws to prevent or punish frauds in an election for
Rep resentatives in Congress, is not discussed in any of
the cases to' which we have referred.  It would seem
that the government of the United States, like all
other governments, should possess the power to protect itself against frauds and crimes aimed at the purity of its legislative department.
~ 18. By the 21st section of the Act of Congress,
approved March 3d, 1865, it was provided that " in
addition to the other lawful penalties of the crime of
desertion from the military or naval service of the
United States, all persons who have deserted the
military or naval service of the United States, who
shall not return to said service or report themselves
to a Provost Marshal within sixty days after the
proclamation hereinafter mentioned, shall be deemed
and taken to have voluntarily relinquished and forfeited their rights of citizenship, and their right to
become citizens, and such deserters shall be forever
incapable of holding any office of trust or profit under the United States, or of exercising any right of
citizens thereof"  The constitutionality of this act
was brought in question before the Supreme Court
of Pennsylvania, in the case of Huber vs. Riely, (53
Pa. State Reporls, 112, Brighl/ey's Election Cases, 69.)
The case was that of a citizen whose vote was refused by the judges of election, upon the ground
that having been regularly drafted, he had failed and
refused to report, and never did report for muster.




OF THE QUALIFICATIONS OF VOTERS.       21
The constitutionality of the act was assailed, upon
these grounds, viz:
1. That it was an ex post facto law, imposing additional punishment for an offense committed before
its passage.
2. That it was an attempt on the part of Congress
to regulate suffrage in the States, or to impair it.
3. That the act proposed to inflict pains and penalties upon offenders without a trial and conviction
by due process of law, and that it was therefore
prohibited by the bill of rights.
Upon the first point it was held that the penalty
of forfeiture of citizenship, imposed upon those who
had deserted the military or naval' service, prior to
the passage of the act, was not a penalty for the
original desertion, but for persistence in the crime,
and a refusal to report for muster and duty when
commanded so to do. Upon the second point, the
court held that the act was not an attempt to regulate suffrage in the States, but simply an exercise on
the part of Congress of its power to "deprive an individual of the opportunity to enjoy a right that belongs to him as a citizen of a State," which was held
to be a different thing from taking away or impairing the right itself. The Federal Government, in an
exercise of its right to imprison a citizen of a State
for crime, or to impress him into the military service,
and remove him from the State, may deprive him of
the opportunity to vote, and no doubt the forfeiture
of citizenship, and'of all its rights, may be affixed as
a penalty, for the commission of a crime against the
United States.
Upon the third point the Court held that the act




22      OF THE QUALIFICATIONS OF VOTERS.
could not be upheld as constitutional, if it did in fact
impose penalties, before and without a trial by due
process of law; and by due process of law is meant
"the law of the particular case administered by a judicial tribunal, authorized to adjudicate upon it," and
the Court say that "a judge of elections, or board of
election officers, constituted under State laws, is not
such a tribunal." The Court, however, conclude
that the act of Congress was intended to apply, and
does apply, only to those cases of desertion, in which
there has been a conviction by court martial, and that
thus construed, it is constitutional. To the same effect is State vs. Symonds, 57 Maine, 148.
~ 19. The punishment of disfranchisement is not
a cruel and unusual one, and it is competent for the
legislature, unless restrained by the State constitution, to inflict it as a penalty for crime. But when
the constitution provides, that a law may be passed,
excluding from the right of suffrage, persons who
have been or may be convicted of infamous crimes,
it would seem that it is not in the power of the legislature to inflict this penalty for any other than in —
famous offenses. (Barker vs. People, 20 yohnson, 457.)
~ 20. In the case last named, it was held that the
right of voting, and being voted for, are not convertible terms. It is there said that "a great class of
voters are not required to be free holders, and yet
it is necessary (in New York) to the qualification of
a Senator or a Governor, that he should be a free
holder, and with respect to the Governor, he must be
a native citizen of the United States, thirty years of
age, and a resident within the State for five years.
The right of suffrage is therefore distinct from the




OF THE QUALIFICATIONS OF VOTERS.       23
right of being elegible to an office." Anld it was
accordingly held that an act of the Legislature of
New York to suppress dueling, passed in 1816, and
which declared that any person convicted of sending
or accepting a challenge to fight a duel "shall be incapable of holding or being elected to any post of
profit, trust or emolument, civil or military, under
this State," is constitutional. And a conviction and
judgment of disqualification under it, are legal and
valid. But in the same connection the Court discuss the question whether the' legislature are not
restrained from excluding from the right of suffrage,
persons convicted of a crime which is not infamous,
within the legal signification of that term, and the
conclusion is that it is only upon the conviction for
an infamous crime that a voter can be disqualified.
Infamous crimes are treason, felony, and every species of the crimenfalsi, such as perjury, conspiracy
and barratry.
Sending or accepting a challenge to fight a duel
is not, therefore, an infamous crime, but inasmuch as
the right of suffrage does not necessarily imply the
right of being voted for, it was held that the latter
right might be forfeited by conviction for a crime
not infamous, if so provided by statute.
~ 21. In a contested election case, where it is alleged that certain aliens voted illegally, without having been naturalized according to law, parol evidence
is admissible to show that naturalization papers were
fraudulently issued, or fraudulently procured.  Thus
in Wisconsin it has been held that where oaths (or
affirmations,) in the form required for aliens, declaring their intention to become citizens, were signed




24      OF THE QUALIFICATIONS OF VOTERS.
in blank, by the Clerk of a Circuit Court, and so delivered by him to a Justice of the Peace; to be by
him filled out, with the date and names of the persons subscribing them, &c., and the oath was in fact
administered by the Justice, and not (as it purported
to have been) by the Clerk, these facts might be
shown by parol, and the votes of such aliens must
be rejected.  [Stale vs. S/umpf, 23 Wis. 630.)  It is
very true, that the judgment of a Court of competent jurisdiction, in the matter of the naturalization
of a citizen, is as conclusive as its judgment in any
other matter within its jurisdiction.  But it is always
competent to show that the parties were not within
the jurisdiction of the Court, and if the act of pretended naturalization was in fact the act of the Clerk
alone, and not in any proper sense the act of the
Court, it would be a monstrous doctrine to hold that
the certificate bearing the Clerk's signature and seal
is conclusive. Such a rule would permit the party
who committed the fraud to protect himself by his
own fraudulent certificate.
~ 22. In some of the States it is provided by constitutional provision, that to entitle a man to vote,
he must, as a pre-requisite, have paid, within two
years next preceding the time of the election at
which he claims a right to vote, a State or County
tax. In Massachusetts it has been held under a provision of this character, that the payment of a State
tax within the proper period of time, by one who is
in other respects a qualified voter, entitles him to
vote, although such tax was illegally assessed upon
him.  (Huzmphrey vs. Kingman 4, AMetca'fe 162.)
~ 23. Though a tax which is assessed upon one




OF THE QUALIFICATIONS OF VOTERS.     2 5
person, is paid for him by another, without his previous authority, yet if he recognizes the act, and repays or promises to repay the amount on the ground
that such person acted as his agent, he thereby acquires the same right to vote, as if he had paid the
tax with his own hand. (ib. and see Draper vs.
7ohnson, Clark & Hall, 702.)
~ 24. Where A., who was taxed for land, denied,
when called on for payment, that he was rightfully
taxed, or that he owned the land, and directed the
collector to call on B., the true owner, and the collector thereupon called on B.'s wife, in the absence of B.,
and she paid the tax, and where A. afterwards not
believing himself rightfully assessed, or that B. had
any claim on him, repaid the amount, merely for the
purpose of securing the right to vote, Held, that it
was not such a payment as entitled him to vote. ib.
~ 25. Under a constitutional provision, requiring
as a qualification for voting, the payment of a tax
which had been assessed at least six months before
the election, it has been held that an assessment upon
the voter individually, six months before the election,
was necessary, and that it is not enough that it be
laid upon the County of which he is a resident. It
seems, however, that it is not necessary that it be a
personal or poll tax. It is sufficient if it be a tax
assessed either upon his person or his property within the time required.  (Cather vs. Smith, 2 Sergeant
& Rawle, 267.)
~ 26. In Massachusetts ithas been held, that persons who have the requisite qualifications as to residence, but who have been exempted from taxation on
account of their poverty two successive years before




26      OF THE QUALIFICATIONS OF VOTERS.
their arrival at the age of seventy years, are not entitled to vote, under that clause of the Constitution
of that State, which gives the right of suffrage to
persons otherwise qualified, and who "shall be by
law exempted from taxation." (Opinion of 7udg-es
5, Metca/fe 591. See also 11 Pick. 538.)
~ 27. An action cannot be maintained against assessors by an individual who is liable to taxation for
their omission to tax him, whereby he loses his right
to vote at an election, unless it be shown affirmatively that they omitted to tax him wilfully, purposely,
or with design to deprive him of his vote.  [Griffin
vs. Rising, 11 Pick. 339.]
~ 28. The Constitution of Massachusetts in force
in 1837, vested the right to vote "in every male citizen otherwise qualified, who shall have paid, by himself or his master, parent or guardian, any State or
County tax, which shall within two years next preceding the election in question, have been assessed
upon him in any town or district in this commonwealth." Under this clause it was held that after
any general assessment of a tax has been made by
the assessors of a town, and committed to the proper
officer for collection, and before another tax is committed to the assessors to assess, they have no authority to assess a poll or other tax on any person,
for the purpose of enabling him to vote at an election, nor is any person on the payment of a tax so
assessed upon him, qualified to vote, under the above
constitutional provision.   [Opinion of 7udges, 18
Pick, 575.]
~ 29. Where a State has ceded a given tract of
land to the United States'for a navy yard, arsenal,




OF THE QUALIFICATIONS OF VOTERS.       27
or the like, and where there is no reservation of jurisdiction to the State other than the right to serve
civil and criminal process on such lands, persons who
reside upon such lands do not acquire any elective
franchise, as inhabitants of such State. [Opinzon of'
S7udges, 1 Melca`fe, [Mass.] 580. Sinks vs. Reese, 19
Ohio Stale, 306, Commonwealth vs. Clary, 8 Mass. 72.]
~ 30. "But this rule does not apply to persons residing upon a tract of land in a territory of'the U.
S., which has been reserved or set apart by the executive for military purposes. It was so held in
Burlezgh vs. Armstrong, 42d Congress, in which case
the committee said in their report:
"But with regard to the election held within the
military reservations of Fort Sully and Fort Randall,
[or the Ellis precinct,] the committee have reached
the conclusion that there is nothing in the terms of
the organic act, nor in the general policy of the law,
forbidding an election to be held at such places.
The contestants have insisted that the rule which
disqualifies persons from voting within any State,,
who reside within forts or other territory to which
the title and jurisdiction has been ceded by the State
to the Federal Government, applies to the military
reservations which have been designated by the Executive within the Territories belonging to the United States. But forasmuch as there is no conflict of
sovereignty between the Government and the Territory, and the latter holds all its jurisdiction in subordination to the controlling power of Congress, and
the military reservations are not permanently severed from the body of the public lands, but are simply set apart and withheld from private ownership




.28     OF THE QUALIFICATIONS OF VOTERS.
by an executive order to the Commissioner of the
Land Office, and may be and often are restored to
the common stock of the public domain, when the
occasion for their temporary occupancy has ceased,
at the pleasure of Congress, and which requires no
concurrent act of any State authority to give it efficacy, the residents upon such reservations, although
abiding thereon by the mere sufferance of the United States authorities, do not in any just sense cease
to be inhabitants or residents of the Territory within
which such military reserve may be situate. Such
residents seem to the committee to have that same
general interest in the welfare of the community in
which they live, and the same right to vote there, as
any of the workmen at the arsenal or navy yard in
Washington City, who may be allowed to sojourn
within their limits, have to vote at elections within
the District of Columbia for officers of its territorial.government, or for a Delegate in Congress from that
District."
~ 31. It seems to be settled that a State, in the
exercise of its power to prescribe the qualifications.of its electors, may require a test oath to be taken
by every voter, at the polls. This is not a violation,of the Constitution of the United States.
The Amended Constitution of Missouri required
such an oath to be taken as a pre-requisite to exercising the right to vote, as well as to the exercise of
the duties of certain callings in life, such as that of
Attorney at Law, Minister of the Gospel, &c. In
Cummings vs. Missouri, (4 Wall 277,) the Supreme Court of the United States, by a bare majority of the Judges, held this provision of the Consti



OF THE QUALIFICATIONS OF VOTERS.     29
tution of Missouri to be void, as being in the nature
of pains and penalties, so far as it related to the oath
required to be taken by Ministers of the Gospel.Mr. Justice Miller, however, for the minority of the
Court, delivered a dissenting opinion which has been
well characterized as "an opinion which for ability,
logic, and admirable judicial criticism has rarely been
excelled even in that august tribunal." The question of the validity of this test oath, as applied to
voters, came before the Supreme Court of Missouri
in Blair vs. Ridgely, (41 Missouri, 63,) and that Court
in an elaborate and able opinion held it valid.
~ 32. This decision was not in conflict with Cummings vs. Missouri, supra. In the latter case the Supreme Court of the United States held that the right
to adopt and follow the calling or avocation of a
preacher, or minister of the gospel, was a natural
right; a right absolute, and vested, and that it was
therefore not within the power of the State to prescribe a test oath to be taken, as a condition precedent to its enjoyment. But the right to vote is not
a natural right; it is not such a right as belongs to
man in a state of nature. It follows that the reasoning of the Court in Cummings vs. Missouri does
not apply to the question of the validity of the test
oath as applied to a voter. And it also follows, that
inasmuch as the right to vote is derived from and
regulated by the State Constitution and laws, it is
competent for the State to prescribe loyalty as a
qualification, and to enforce the requirement by exacting of every voter an oath of loyalty.
~ 33. This question arose in the House of Representatives of the United States in Birch vs. Van




3()     OF THE QUALIFICATIONS OF VOTERS.
Horn, (2 Bartelett 205,) and the decision of the committee, and of the House, was in accordance with
the view just expressed. The committee use the
following language in their report:
"The ninth section of the same. article provides that
after sixty days from the time the constitution takes
effect, no person shall be " permitted to practice as
-an attorney or counselor-at-law, nor after that time
shall an)y person be competent as a bishop, priest,
deacon, minister, elder, or other clergyman of any
religious persuasion, sect, or denomination, to teach.or preach, or solemnize marriages, unless such person shall have first taken, subscribed, and filed said
oath."
Under this ninth section of' the constitution arose
the case of Cummings vs. The State of Missouri,
(4 Wallace, 277,) in which it was held by a majority
of the Supreme Court of the United States that this
provision, having the effect to deprive persons of the
right to practice professions and pursue avocations
lawful in themselves, in consequence of acts done
prior to the adoption of the constitution, could only
have been intended as punishment for such acts, and
was therefore in essence and substance an ex ost
facto law, and therefore forbidden by the Constitution
of the United States. The contestant claims that
the same application of principles requires the same
decision in relation to voters; that the virtual disfranchisement of persons who were voters under the
previous Constitution and laws of the State, but who
are prevented from voting under the new Constitution, by reason of their inability to take the oath it
requires, can only be regarded as a punishment for




OF THE QUALIFICATIONS OF VOTERS.      31
the act which stands in the way of taking the oath,
and that the CQnstitution of the United States prohibits the infliction of punishment by subsequent legislation.
If such disfranchisement must be regarded as established for the purpose of punishing the persons
thus deprived of the right of voting, it must be admitted to come entirely within the reasoning by which
the above cited judgment of the Court is supported.
Your committee believe that the provisions of the
new Constitution of Missouri may be supported, so
far as they require this oath of voters, without at all
trenching upon the decision of the Supreme Court.
Each of the States of the Union have hitherto
regulated suffrage within their own limits for themselves, and in such a manner as the people of the
State deemed most conducive to their own interests
and welfare. Suffrage is a political right or privilege which every free community grants to such
number and class of persons as it deems fittest to
represent and advance the wants and interests of
the whole.  No State grants it to all persons, but
with such limitations as the interests of all and the
interest of the State require.
When once granted it is not a vested, irrevocable
right, but it is held at the pleasure of the power that
gave it, and the State may, by a change of its fundamental law, restrict as well as enlarge it. When,
therefore, the State of Missouri, in changing its constitution, saw fit to declare that the interests of the
State and of the people of the State would be promoted by withholding the right of voting from all
persons who could not take the prescribed oath,




32     OF THE QUALIFICATIONS OF VOTERS.
they exercised no greater or higher power than exists in every State."
~ 34. It was held by the Supreme Court of Mass.
in 1814, that a person having a permanent home in
one town within that State, and being a legal voter
in such town, is not disqualified by a temporary absence in another town, and being there admitted to
vote.  (Lincoln vs. Hapgood, 11 Mass. 350.)  The
general doctrine laid down in this case is doubtless
correct. If a person is clearly a resident of, and a
legal voter, in one place, and is improperly and illegally permitted to vote at another, that fact alone
will not disqualify him from continuing to vote at the
place of his actual residence. But it is proper to
observe in this connection, that if there is any doubt
as to which of two places is the home, or residence
of a voter, the fact that he has within a recent period voted at one of such places, would be very strong
evidence that he had decided for himself to make his
home where he cast his vote. And if a person is
residing at a particular place, and there is doubt as
to whether he is residing there temporarily,'and
claiming another place as his house, if he claims
and exercises the right to vote at the place where
he is for the time residing, that fact ought to be regarded as evidence well nigh conclusive that he has
abandoned his former residence, and determined to
make his home where he claims his vote. The question of residence or domicil is a question largely of
intention, and the fact of voting is very strong evidence of the voter's intention to claim a domicil at
the place of voting.
~ 35. A certificate of naturalization in due form,




OF THE QUALIFICATIONS OF VOTERS.    33
issued by a Court possessing the jurisdiction to
grant the same, is primafacie evidence of naturalization, and an election officer cannot go behind it.
If a voter could be obliged to bring proof aliunde to
sustain such a certificate, and the judges of election
could be obliged to hear evidence pro and con, the'
value of the boon of citizenship, which we confer
upon foreigners who come to our shores, would be
greatly lessened. Besides, in many localities where
the number of naturalized voters is very large, this
mode of proceeding would be impossible, since a few
cases would consume the whole of the day of election, and the many would remain unheard.  (Commonwealth vs. Lee, 1 Brewster, 273.  Commonwealth
vs. Sheriif ibid, 183. Commonwealth vs. Leary, ibid
270.)
~ 36. In the case of Williams vs. Whiting, (11
Mass. 424,) the question was as to when the plaintiff ceased to be a resident of Roxbury, and became
a resident of Dedham. On the 28th day of October, 1811, being then a resident of Roxbury, "he received," says the Court, "an appointment which rendered it convenient, if not necessary, for him to
dwell in Dedham; and he then began to prepare for
his removal; from that time until the 12th of November, he passed almost every day in Dedham, where
he transacted his business, and returned to his family
each night, except three, on which he slept in Dedham, rather by accident than design; he had also on
the 29th of October, engaged a house in Dedham,
but he did not occupy it until the 12th of November,
oil which day he removed his family and became
domiciled in Dedham."  And the Court held upon
3




34      OF THE QUALIFICATIONS OF VOTERS.
these facts that he remained an inhabitant of Roxbury until the day of his removal with his family.
In the same case it is held that under the statute
of Mass., to entitle a person to vote for a Representative in Congress, he must have resided one whole
year previous to the election in the town where he
offers to vote, and that it made no difference, that
the person offering to vote had removed, inside of a
year, from another town in the same congressional
district. The Constitution of the United States requires that the electors for Representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State Legislature, and one of these qualifications in Massachusetts was one year's residence in the place of voting.
~ 37. A person who removes with his family from
one town to another, does not retain the right to
vote in the former, until he acquires it, in the latter.
(McDaniels Case, 3 Pa., L. 7. 310.  Thompson vs.
Ewing, 1 Brews!., 103.)
~ 38. For a thorough and able discussion of the
question of residence, as applied to voters, see the
Report of the committee of Elections in the House
of Repre3entatives of the 42d Congress, in the case
of Cessna vs. Myers, to be found in full in the appendix to this volume. This Report presents forcibly and clearly the important consideration that no
definition of " residence " or " domicil" can be made
sufficiently comprehensive to apply to all conceivable cases and circumstances. Tests which are satisfactory in some cases cannot be applied as inflexible rules in all. Thus it is a general rule that in order to gain a residence in a particular place, a man




OF THE QUALIFICATIONS OF VOTERS.     3 
must fix his domicil there with the intention of remaining an indefinite time, and with no fixed purpose
of making that place a temporary abiding place only.
But there are persons whose lives are necessarily
migratory, whose business is to travel from place to
place. As for example a Methodist minister, who,
by the law of his church, cannot remain permanently
and pursue his calling in any one place; or a school
teacher who resides wherever he can get employment, and removes when his business requires it; or
a laborer who lives where there is an iron furnace,
or a coal mine, or a railroad in process of construction, to furnish him employment and a livelihood,
and when these fail him in one place, goes to another.
With reference to these and other similar classes a.different rule must be applied. As to what that rule
is, nothing need be added to what is said in Cessna
vs. Myers; and let it be understood that the authorities cited in this chapter upon the general question
of residence, are to be read with reference to the
qualifications expressed in that report.
~ 39. Residence, within the meaning of the Constitution of Pennsylvania, as applied to the qualification of an elector, means the same, thing as domicil,
the place where a man establishes his abode, makes
the seat of his property, and exercises his civil and
political rights.  (Chase vs. Milller, 41 Penn. S/ale R.
404.) Such residence must have been with intent
to become a citizen of the State, and to abandon the
citizenship he may have had in another State. Mere
residence for the purpose of business or pleasure,
unaccompanied with an intention to abandon the
former citizenship, is not sufficient. To constitute




3 6     OF THE QUALIFICATIONS OF VOTERS.
residence there must be an intention to remain, but
this intention is entirely consistent with a purpose
to remove at some future indefinite time.  (Miller
vs. Thompson, 1 Bartlett, 118 Pigolt's Case, ibid, 463.)
~ 40. Domicil or residence in a legal sense, is determined by the intention of the party; he cannot
have two homes at the same time; when he acquires
the new home, he loses the old one; but to effect
this change there must be both act and intention.
(State vs. Frosl, 4 Harringlon, 558 McDaniel's Case, 3
Penn., L. 7. 310.)
When a man removes with his family into a county
with the intention to make that his residence, that
is the county where he should vote so long as his
family remains there, though he may himself pass
his time, and engage in business, or work, in another
county.  (People vs. Holden, 28 Cal. 124.) Residence
once acquired, by birth or habitancy, is not lost by a
temporary absence for pleasure or business, with an
intention of returning. (State vs. _7udge, &c., 13
Ala,, 806, Lincoln vs. lHapgood, 11 Mass. 350.)
~ 41.' The fact that an elector is a soldier in the
army of the United States, does not disqualify him
from voting at his place of residence, but he cannot
acquire a residence so as to qualify him as a voter,
by being stationed at a military post whilst in the
service of the United States.  (People vs. Riley, 15
Cal. 48; Hunt vs. Richards, 4 Kansas 549, Biddle vs.
Wing, Clark e Hall, 504.)  As to the right of a
student at a college, being of age, and otherwise
qualified to vote, see Cessna vs. Myers, supra, and
also see Putnam vs. 7ohnson, 10 Mass. 488, Farlee
vs. Runk, 1 Bartlett, 87, Opinion oJf udges, 5 Met.




OF THE QUALIFICATIONS OF' VOTERSi.    3 7
587, Cushing's Election Cases, 436. It will be found
from an examination of these authorities, and from
a full consideration of the subject, that the question
whether or not a student at college is a bonafide resident of the place where the college is located must
in each case depend upon the facts.  He may be a
resident and he may not be. Whether he is or not
depends upon the answer which may be given to a
variety of questions, such as the following. Is he
of age? Is he fully emancipated from his parent's
control? Does he regard the'place where the college is situated as his home, or has he a home elsewhere to which he expects to go, and at which he
expects to reside? In a word, it is necessary from
a survey of all the facts to determine whether while
at college he is at his home, his residence, or temporarily absent from it.
~ 42. In the absence of statute regulations, the
general rule seems to be that a pauper abiding in a
public almshouse, locally situated in a different district from that where he dwells when he becomes a
pauper, and by which he is supported, does not acquire a residence in the almshouse for the purpose
of voting. (Monroe vs. 7ackson, 1 Bartlett, 98,
Covode vs. Foster, 2 Bartlett, 600, Taylor vs. Reading,
2 Bartlett, 661.)
But see Cessna vs. Myers, supra, from  which it
would seem that this is not entirely settled.
~ 43. In.several of the States the elective franchise is given by Constitutional provision to " all
male inhabitants above the age of twenty-one years"
having resided in the State for a given period. An
important question has arisen as to whether unnatu



38      OF THE QUALIFICATIONS OF VOTERS.
ralized aliens, otherwise qualified, have the right to
vote under a provision of this character. The controversy is as to the meaning of the term " inhabitant," when used in this connection.  Does it embrace the idea of citizenship?  In Spragins vs.
Houghlon, [3 Il/. 377,] it was held that the question
of citizenship does not enter into the qualification of
a voter in such a case, and the question is there discussed at great length and with much ability. And
this doctrine is sustained by the Supreme Court of
Pennsylvania, in Stewart vs. Foster, [2 Binn. 110.]
~ 44. In Howard College vs. Gore, [5 Pick 370,]
the Supreme Court of Massachusetts express a different view of the meaning of the word inhabitant.
The question there was as to what constitutes an
inhabitant of a county, within the meaning of the
statute for taking the probate of Wills and granting
administration on the estates of persons deceased
"being inhabitants of or residents in, the same county
at the time of their decease." And the Court in
construing this statute say:  "The term inhabitant,
as used in our laws and this statute, means something more than a person having a domicil It imports citizenship and municipal relations, whereas a
man may have a domicil in a county to which he is
alien, and where he has no political relations."  And
see opinion oJ 7udge Cushing's Election Cases, 120
Malden's Case zb, 377
~ 45. Notwithstanding the conflict of authority
above referred to, it seems very manifest that where
the term "inhabitant" is used especially in describing
the qualifications of voters, it does not mean the
same thing as citizen. It must be conceded that




OF THE QUALIFICATIONS OF' VOTERS.     39
while the two terms may to a certain extent mean
the same thing, the term citizen has a more extensive signification than the term inhabitant, and it is
therefore entirely fair to presume that when the framers of a law intend to express this larger meaning,
they will use the larger term.
~ 46. The Constitution of Pennsylvania requires,
among other qualifications ac a voter, that he shall
have resided one yeair in the State, "and in the election district where he offers to vote, ten days immediately preceding such election."
It was held in McDaniel's case [3 Pa. Law 7ournal
310, Brighlley's Election Cases 238,1 that an election
district was any part of a city or county, having fixed
boundaries within which the citizens residing therein
must vote, as for example a ward in the city of Philadelphia. It was also held that a person who removed from one election district to another, within
the ten days immediately preceding an election, lost
his right to vote in the district removed from, and
did not gain a right to vote at that election in the
district removed to. The right to vote in the former does not continue until the same right is acquired in the latter, but is lost as soon as the removal is complete. There is therefore always a period following a change of residence, during which
the citizen has no right to vote at any place. It is
often laid down as a general proposition that in case
of a removal by a person from one place to another,
his first residence is not lost until the second is acquired. And this is true for some purposes, but not
for the purpose of determining the right of such
person to vote. That right ends in the place re



40      OF THE QUALIFICATIONS OF VOTERS.
moved from, as soon as the voter completes his removal. It is acquired in the place removed to, only
after such a residence therein as the law requires,
and as no man can have two residences at the same
time, it follows that he cannot. acquire the right to
vote in the new, by residing there, until he has
ceased to have a residence in the old.
~ 47. A statute providing that "when two persons
shall have an equal number of votes, the returning
officer shall have the casting vote, but shall not vote
in any other case whatsoever" is a constitutional and
valid statute.  (State vs. Adams, 2 Stewart, [Ala.]
231, Brightley's Election Cases, 286.)  It is well settled that a citizen by accepting an office may. waive
a constitutional privilege. The constitution of each
SLate grants the right of suffrage to all electors, and
no elector can be deprived of this right otherwise
than as prescribed by law. But the citizen can refuse to exercise this privilege, and he may also relinquish it for a time, in order to secure to himself a
greater advantage, and therefore he may waive his
right to vote, in common with other citizens, to secure the honors and emoluments of an office, and
the power to give the casting vote in case of a tie.
~ 48. At common law voting by proxy is unknown,
and every vote, whether given by a stockholder of a
corporation, or by a freeman for his representative,
must be personally given. A corporation may, however, by a provision in its charter, provide for voting
by proxy, though it is to say the least, very doubtful
whether a provision in the by-laws of a corporation,
providing for voting by proxy, could be upheld.
Upon this general subject see the following authori



OF THE QUALIFICATIONS OF VOTERS.      41
ties:  Stae vs. Tudor, 5 Day, 219.  Taylor s. Griswold, 2 Green, [N. 7.] 223. Angell & Ameson Corp.
Chap. 4, 57. Brown vs. Commonwealth, BrzghZtey's
ElectionCases 282. Phillifps vs. Wickham, 1 Paige 598.
~ 49. In most of the States electors are privileged
from arrest, except for treason, felony or breach of the
peace, during their attendance upon the election,
and in going to and returning from the same. This
privilege does not cease when the elector deposits
his ballot, but it seems that he has a right to remain
at the polls or near them until they are closed, and
to plead his constitutional privilege if arrested while.
thus engaged.  In Swift vs. Chamberlain, [3 Connecticut, 537,] it was held that an elector who, after depositing his vote, retired to a public house in the
neighborhood, while the election officers were counting the votes, was "attending on the business of
the election," and therefore privileged from arrest
on civil process. As to what amounts to a breach
of the peace, within the meaning of the Constitutional provisions referred to, see Mr. Brightley's note
to the case of Swift vs. Chamberlain, supra, Brightley's Election Cases, page 280.
~ 50. The vote of an idiot, or person non compos
men/is, ought not to be received, and if such a person has voted, his vote may be rejected upon a contest, without a finding in lunacy.  Thompson vs. Ewing, (1 Brewster, 68-9.) But the vote of a man otherwise qualified, who is neither a lunatic nor an idiot,
but whose faculties are merely greatly enfeebled by
old age, is not to be rejected.  (Sinks vs. Reese, 19
Ohio, State R 307.) When a vote is attacked on
the ground that the voter who cast it was non compos




42     OF THE QUALIFICATIONS OF VOTERS.
men/is,.it is necessary to establish satisfactorily, by
competent evidence, the alleged want of intelligence,
and the test would probably be about the same as.
in cases where the validity of a will is attacked on
the ground that the testator was not of sound mind,
when it was executed. If the voter knew enough
to understand the nature of his act, if he understood
what he was doing, that is probably sufficient.
~ 51. By the terms of the treaty of peace of 1848,
between the United States and Mexico, it was provided that the inhabitants of the territories annexed
to the United States, and detached from Mexico)
might elect to remain citizens of Mexico, by making'
known such election within one year from the date
of the treaty, but the manner of making such election was not prescribed either by the treaty or by
any act of Congress. Held, that a declaration in
writing, signed by persons so electing to remain
Mexican citizens, and filed in one of the Courts of
the territory of New Mexico, in pursuance of a proclamation from the Governor of the territory, was
sufficient, and that the persons signing such declaration remained citizens of Mexico, and could, after
making such declaration, become citizens of the
United States, only by the ordinary process of naturalization, and that the votes of such persons for
delegate in Congress were illegal, and should be rejected.  Ol/ero vs. Gallegos, [1 Bar/tele, 177.]
~ 52. Persons residing within the bounds of an
Indian Reservation, in the Territory of Dakota, have
no right to vote at an election for delegate in Congress. But it is otherwise with persons residing
within the limits of a Military Reservation. It was




OF THE QUALIFICATIONS OF VOTERS.      43
so held by the House of Rlepresentatives, in the
case of Burleigh and Spink vs. Armstrong, 42d
Congress.
~ 53. The House of Representatives of the United States has frequently held that residents upon
an Indian reservation have no right to vote. [Daily vs. Eslabrook, 1 Bartlett, 299.  Morton vs. Daily,
do 402. Bennett vs. Chapman, do 204.] In the latter
case the House sustained this doctrine against the
report of the Committee. These cases, however,
were all from the territory of Nebraska, and were
decided upon the ground that the organic act of the
territory provided that "territory occupied as an Indian reservation shall not be considered a part of
Nebraska territory, but that all such territory shall
be excepted out of the boundaries until, by arrangement between the United States and the Indians, the
title of the latter shall be extinguished." A similar
provision will be found in the organic acts of most,
and probably of all the -territories,
~ 54. Inasmuch as naturalization is in nearly all
the States necessary to qualify an alien to vote, it is.
proper in this connection to state briefly the general
requirements of the law upon that subject. Congress has power " to establish a uniform rule of naturalization." [Const. Art. 1, Sec. 8.]  And the power of Congress under this clause of the Constitution
is exclusive, so that no State can pass a naturalization law, [Chirac vs. Chirac, 2 Wheat, 269.  United
States vs. Vallayo, 2 Dall., 372.  Thurlow vs. Mass.,
5 How., 585. Smith vs. Turner, 7 ibid, 556.]
The following is a summary of the naturalization
laws:




44      OF THE QUALIFICATIONS OF VOTERS.
i. The first step to be taken by an alien desiring
naturalization is the declaration, under oath, of his
intention, bona fide, to become a citizen of the United States, and to renounce forever all allegiance
and fidelity to any foreign power, potentate, state or
sovereignty whatever, and particularly b.y name, the
prince, potentate, state or sovereignty whereof such
alien may at the time be a citizen or subject. This
declaration may be made before the Supreme, Superior, District or Circuit Court of some one of the
States, or of the territorial districts of the United
States, or a Circuit or District Court of the United
States.
2. Such declaration of intention must be made
two years at least prior to the time when such alien
is admitted to citizenship, and may be made before
the clerk of any of the courts above mentioned.
3. After having resided in the United States five
years, and in the State or Territory where he applies
for admission, one year at least, such alien may apply
to any Court authorized to grant naturalization, and
upon satisfying such Court that he has complied
with the law in these respects-that he has made
his declaration more than two years previously, and
that he has behaved as a man of good -moral character, attached to the principles of the Constitution
of the United States and well disposed to the good
-order and happiness of the same —he may be admitted to citizenship by taking the oath of allegiance
required by the statute. But the applicant can, in
no case, prove his residence by his own oath alone.
4. In addition to the Federal Courts, "Every
Court of record in any individual State having com



OF THE QUALIFICATIONS OF VOTERS.      45~
mon law jurisdiction and a seal and clerk or prothonotary" may grant naturalization.
5. The naturalization of the parent also naturalizes
all children of such parent under twenty one years.
of age, and dwelling in the United States.
6. Children of citizens of the United States,.
though born out of the limits and jurisdiction of the
United States, are to be considered as citizens of the
United States.
7. If an alien, who declares his intention to become a citizen, and continues to pursue the directions prescribed for perfecting his naturalization,
shall die, before he is actually naturalized, the widow
and the children of such alien shall be considered as.
citizens of the United States.
8. An alien minor who has resided in the United
States three years next preceding his arriving at the
age of twenty one years, and who has resided therein five years continuously, may apply for, and obtain
naturalization without any previous declaration of
intention.
9. Aliens honorably discharged from the military
service of the United States, are allowed to be naturalized without any previous declaration, and on
proof of only one year's residence. [See naluralizalion laws, Revised Statutes U. S., page 380.]
~ 55. A State law restricting the State Courts and
their clerks from receiving applications, or entertaining jurisdiction, for the naturalization of aliens under
the acts of Congress, is not contrary to the Constitution of the United States. Congress can confer
jurisdiction upon State Courts to grant naturalization, but it cannot compel such Courts to exercise




46      OF THE QUALIFICATIONS OF VOTERS.
that jurisdiction in violation of a State law. The
"powers given to the State Courts by the naturalization laws are naked powers, which impose no legal
obligation on Courts to assume and exercise them,
and such exercise is not within their official duty, or
their oath, to support the Constitution of the United States."  [Case of Slephens, 4 Gray, 550. Morryan vs. Dudley, 18 B. Monroe, 693.  Rump vs. Commonweal/l, 6 Casey, 475.1
~ 56. Application for naturalization must be made
in open Court, and evidence of residence &c., must
be taken by the oral examination of witnesses, and
not by previously prepared affidavits. Certificates
of naturalization issued by the clerk of a Court,
without any hearing before th;e Judge, in open
Court, are void, and confer no right of citizenship
upon the holder.  (People vs. Swee/man, 3 Parker, C..R. 358.)
~ 57. Under the acts of Congress, children born
abroad, not only of citizens by birth, but also of na-,
turalized citizens, are citizens of the United States.
(Sasportasvs. De La Motta, 10 Richardson Eq. Rep.
38.)
~ 58. Soldiers in the United States army cannot
acquire a residence by being long quartered in a
particular place, and though upon being discharged
from the service, they remain in the place where
they have previously been quartered, if a year's residence in that place is required as a qualification for
voting, they must remain there one year from the
date of discharge before acquiring the right to vote.
(Biddle and Richard vs. Wing, C/. & H., 512.)
~.59. Under a provision in the Constitution of




OF THE QUALIFICATIONS OF VOTERS.      47
Virginia, giving the right to vote to those who for
twelve months have been housekeepers and heads
of families, it was held that unmarried persons, who
are living with their mothers or with younger brothers and sisters, having charge of the family, the father being absent or dead, are to be deemed "housekeepers and heads of families." Also, that in determining whether a person is a voter within the
meaning of this provision of the Constitution it is
not proper to inquire whether he is legally married
to the woman with whom he lives and keeps house.
[Draper vs. Johnson, Cl. &' H., 702.]
~ 60. The same Constitution required that in order to have the right to vote it was necessary to be
"possessed of an estate of freehold in land," and
under this provision it was held that a person possessed of a merely equitable interest in lands or
holding a bond for a deed, was not entitled to vote.
[bid.]
~- 61. And another provision of th.e same'Constitution gave the right to vote to those who possessing certain other qualifications, "'shall have been assessed with a part of the revenue of the commonwealth within the preceding year, and actually paid
the same." Under this provision it was held by a
majority of the committee, that where taxable property is owned and possessed by the son, and is assessed in the name of the father, but the tax is actually paid by the son, he having all the other qualifications required, is entitled to vote, but that if the
property is both assessed to, and paid by the father,
the vote is to be rejected.
Also, that where a revenue tax is duly assessed,




48     OF THE QUALIFICATIONS OF VOTERS.
and the sheriff has paid the tax himself, and has not
returned the party delinquent, that this is to be
deemed a payment by the party so as to entitle him
to vote. [Ibid.]
~ 62. In Pennsylvania the rule is that no person
shall vote without having been assessed and paid a
tax. Persons not assessed are, by the law of that
State, required in order to vote, to answer certain
questions under oath, as to tax, age, residence, &c.,
and in addition to prove their residence by the oath
of a qualified voter of the division, and the statute
made it the duty of the inspectors to require such
proof, whether the voter be challenged or not. Under this law it has been held by the House of Representatives that persons who were not - ssessed, and
who voted without answering any of the questions
required to be answered, and without producing the
testimony of a qualified voter as to their residence,
are presumed to be illegal voters. And where the
number of such votes was large enough to destroy
the reliability of the return, there being no proof
upon which the poll could be purged of such illegal
votes, it was rejected.  [Myers vs. Moffatt, 2 Bartlet, 564, Covode vs. Foster, 2 Bartlett, 600.]  This
decision is not in conflict with the general rule that
a person who has voted is presumed, until the contrary is shown, to have been qualified. The contrary
was presumptively shown by proof that these voters
had failed to comply with the statute which required
this evidence to be produced by them before voting.
When it is thus shown that persons have voted without proving their qualifications as required by positive statute, it is incumbent upon the party claiming




OF THE QUALIFICATIONS OF VOTERS.      49
the benefit of the votes of such persons, to show
affirmatively that they were qualified voters.
~ 63. It is not competent for a State Legislature
in providing for a special election to determine the
location of a county seat, or to determine any other
matter, to require any other qualifications for voters
at such election, than those prescribed by the Constitution. Constitutional provisions concerning the
qualifications of voters apply to all elections, whether
general or special.  (State vs. Williams, 5 Wis., 308,
State vs. Leon, 9 Wis., 279.)
~ 64. It is, however, competent for the legislature
to prescribe questions to be propounded to voters
calculated to draw from them the proof of their qualifications to vote at an election, and require the
voter to answer thereto before he can vote. This
does not add to the qualifications of voters; it only
provides the means of testing the voters right.
(Stale vs. Leon, supra.)
~ 65. In accordance with the principle that the
legislature cannot add to the constitutional qualifications of voters, it has been held that where the
Constitution requires that a person shall have a residence in the township where he offers to vote, without prescribing any period of residence, a statute
which undertakes to require a residence in the township of twenty days, is unconstitutional and void.
(Quinn vs. The Stale, 35 ind. 486.)  A residence bona
Jfde, fora time however short, satisfies the constitutional requirement, and it is fair to presume that it was
intended that a person having all the other qualifications, and removing from one township to another
at any time prior to the day of election, should re4




50     OF THE QUALIFICATIONS OF VOTERS.
tain the right to vote. If twenty days residence in
the township may be required under such a Constitution, a longer period may be, and thus the Constitution might be rendered meaningless or nugatory.
~ 66. The object of prescribing an oath to be taken by an elector who is challenged at the polls, or
before registering officers, is to test the right of such
person to vote or to  register.  It is doubtful
whether a statute requiring a challenged person to
take an oath, the nature of which is such as not in
any degree to test his right, would be held valid.
It would probably be held to be not a proper regulation of, but an unnecessary and unwarranted restriction upon the exercise of his right to vote.
Thus in Nevada it was held that a statute requiring
an oath to be taken by an applicant for registration,
to the effect that he has not, since arriving at the
age of eighteen years, voluntarily been engaged in
rebellion against the government, is void, because
the Nevada Constitution provides that persons who
were engaged in the rebellion, and who were afterwards pardoned, may vote. (Davies vs. Mc~erky, 5
Nevada, 368.)
~ 67. An act purporting to authorize the Governor of a State to set aside the registration of the
voters of a county, and thus deprive them of the
right to vote, is unconstitutional and void. It is not
doubted that the people of a State expressing their
will in the form of a constitutional provision or otherwise, may prescribe the qualifications of voters,
whereby the elective franchise may be bestowed
upon persons not before entitled to it, and may be
taken away from persons before entitled to it, sub



OF THIE QUALIFICATI)NS ()F V()TERS.   51
ject to restrictions upon this power, contained in the
Constitution of the United States. But the right of
suffrage once conferred by a Constitution, the legislature has no power to divest it. It follows that
where a person, entitled under the Constitution to
vote has complied with such law, in regard to registration and the like, as the legislature may prescribe
by way of regulating the exercise of the right, the
legislature cannot authorize the Governor, or any
other official, to take the right away from him. [State
vs. Staten 6 Caldw. (Tenn.) 233. Sheafe vs. Tillman
2 Barteltt 907.]
~ 68. We have elsewhere seen that the act of
Congress of March 3d, 1865, denying rights of citizenship to deserters from the army, must be held to
apply to such persons only as have been duly convicted of the crime of desertion. It follows that to
exclude a person from voting upon this ground evidence must be produced before the proper officers
holdinlg the election, that such person has been so
convicted. It is the duty of such election officers to
ascertain who are citizens, not to adjudge and enforce forfeitures of citizenship. In all cases where
it appears that a person possesses the requisites as
to birth or naturalization, age and residence of a
voter, he must be presumed to be an elector until
the contrary is shown by the best evidence, which in
the case of a conviction for crime, must be the record, or a duly authenticated copy thereof. (Gotchens vs. Malheson,.58 Barb, [Ni. Y.] 152, 40 Howard
[N. Y.] Pr. 97.)
~ 69. Where the Constitution confers upon the
electors the right to choose an officer, it is as we




52     OF THE QUALIFICATIONS OF VOTERS.
have elsewhere seen, often a difficult question to
determine how far the legislature may go in the way
of providing the necessary regulations for the regular and orderly expre~ssion of that choice. Thus in
Pennsylvania the Constitution provided that vacancies in judicial offices, happening by death, resignation or otherwise, should be filled " by appointment
by the Governor, to continue until the first Monday
of December succeeding the next general election."
Under this provision it was doubtless intended that
an election by the people to fill any such vacancy,
should be held at the next general election after its
happening; but the General Assembly provided by
law that all such vacancies should be filled at the
first general election happening "more than three
calendar months after the vacancy shall occur."  The
question of the constitutionality of this act arose in
Commonwealth vs. Mlaxwell (27Pa. State, 44) and it
was held to be constitutional. It was conceded by
the Court in that case, as indeed it must be by all,
that a law intended to take away or unnecessarily and
unreasonabiy postpone and embarass the right of election, would be set aside, as unconstitutional. But it
was held that a provision requiring three months for
deliberation in the choice of a successor in case of a
vacancy, fixes only a reasonable time, and is, therefore, a valid and proper regulation. This decision
goes upon the sound principle that a Constitution
cannot enforce itself; it lays down fundamental principles according to which the several departments it
calls into existence are to govern the people; but all
auxiliary rules which are necessary to give effect to
these principles must, of necessity, come from the
legislature.




OF THE QUALIFICATIONS OF VOTERS.    D53
~ 70. We have already seen that a residence
within a place over which the United States has exclusive jurisdiction is not a residence within the State,
County or township, for voting purposes. It has,
however, been held in Ohio, that a constitutional requirement of residence, for a prescribed time, within
the State, County or township, as a qualification for
voters, is satisfied, if at the time of the election the
voter has a residence within the proper political division, and has resided there for the prescribed
length of time, although there may have been a
change of jurisdiction, as where, during part of the
time, the United States has had exclusive jurisdiction
over the place, but has ceded it back to the State.
[Renner vs. Bennett, 21 Ohio St., 451.]
~ 71. The rule that every man is presumed to
have a fixed domicile somewhere, applies as well to a
single as to a married man, and though the domicile
of the former may be more difficult to find and
prove, yet the rules of evidence by which it is ascertained are the same as those applicable in determining the domicile of other persons.  (French vs.
Lighty, 9 Ind. 478.)  And in the same case it was
held that upon a question of domicile, evidence of the
conduct or declarations of a party, afterwards, as
well as before a given day, may be received to ascertain his intention, as to his place of abode on that
day. This is upon the ground of course, that the
question of domicile generally turns upon the question of intent, and thus can, in the nature of the case,
be shown only by circumstances.
~ 72. The doctrine that the legislature cannot add
to the constitutional qualifications of voters is found



.54    OF THE QUALIFICATIONS OF VOTERS.
ed upon the well settled rule oI construction that
when the Constitution specifies the circumstances
under which a right may be exercised, or a penalty
imposed, the specification is an implied prohibition
against legislative interference, to add to the condition or to extend the penalty to other cases.  (Cooley's Constitutional Limitations, 64. Rison vs. Fair, 24
Ark. 161.)  And upon precisely the same ground it
is held, that where the Constitution defines the
qualifications of an officer it is not within the power
of the legislature to change or superadd to them,
unless the power to do so is expressly, or by necessary implication, conferred by the Constitution itself.
(Thomas vs. Owens, 4 Md., 189.)
~ 73. The better opinion seems to be that idiots
and lunatics are by the common political law of England and this country disqualified from voting.
(Cooley's Const. Limitations, 599.) But these unfortunate persons are expressly excluded from the right
to vote, by the Constitutions of Delaware, Iowa,
Kansas, Maryland, Minnesota, Nevada, New Jersey,
Ohio, Oregon, Rhode Island, West Virginia, Wisconsin, and perhaps by other States. Paupers are
excluded in New York, California, Louisiana, Maine,
Massachusetts, New Hampshire, New Jersey, Rhode
Island, South Carolina, and West Virginia. Persons
under guardianship are excluded in Kansas, Maine,
Massachusetts, Minnesota, and Wisconsin. Persons
excused from paying taxes at their own request are
excluded in New Hampshire. Capacity to read is
required in Connecticut, and capacity to read and
write in Massachusetts.
~ 74. A general and absolute pardon granted by




OF THE QUALIFICATIONS OF VOTERS.      55
the Governor of a State by virtue of power conferred
upon him to grant the same, relieves the person to
whom it is granted, not only from the punishment
provided by his sentence, but from all the consequential disabilities of the judgment of conviction,
and restores such person to the full enjoyment of his
civil rights including the right to vote.  (Wood vs.
Fi/zgerald, 3 Oregon, 569, 4 Blackstone's Commn. 402,
8 Bacon's Ab. Title Pardon.  The People vs. Pease, 3
7ohnson's Cases, 333-4. ZIn re Deming; 10 7o/znson
233. Perkins vs. Stevens, 24 Pick. 277. Ex parle
Garland 4 Wall., 333.)
CHAPTER II.
OF THE QUALIFICATIONS, POWERS AND DUTIES OF
ELECTION OFFICERS.
~ 75. In the House of Representatives of the Uni.
ted States there is a conflict of decisions touching
the validity of the acts of a person acting as an officer of election, and who is such defacZo only and not
dejure. In some of the earlier cases in that body it
was held that an election conducted by persons not
duly qualified, was void. Thus in 7ackson vs. Wayne,
[Cl. & H. 47,] it was held that where the law required three magistrates to preside at an election, a
return by three persons, two of whom were not
magistrates, was defective. And in McFarland vs.




56     OF THE QUALIFICATIONS, POWERS AND
Cudpepper, [ C. &'. 221,] it was held, without much
consideration or discussion, that a failure on the
part of election officers to take the required oath
vitiates the election, and this ruling was followed in
Easton vs. Scott, [Cl.' H., 272,] and in Draper vs.
johnson, ibid., 702. In Howard vs. Cooper the vote
of a precinct was thrown out because the election
was presided over by but two inspectors, when the
statute required three, (1 Bartlett p. 375,) and in
Delano vs. Morgan, (2 Bartlett, page 168,) the vote
of one township was thrown out, upon the ground
that one of the three judges, was a deserter from
the union army, and therefore not capable of taking
or holding the office.
~ 76. On the contrary, however, the cases of Mullikin vs. Fuller, (1 Bartlett, 176,) Clark vs. Hall, (ibid
21.5,) Flanders vs. Hahn, (ibid. 443,) and Blair vs.
Barrett, (ibid 313,) all seem to recognize the doctrine
that, in the absence of fraud, the acts of an officer
defacto of an election are valid as to third parties
and the public.  It is, however, undeniable that
prior to the 41st Congress, the weight of authority
in the House of Representatives was on the side of
7ackson vs. Wayne, and the other cases above cited
which followed that ruling down to, and including
Delano vs. Morgan.
~ 77. But in the case of Barnes vs. Adams, which
arose in the Forty-first Congress, (2 Bartlett, 760,)
the question was reviewed at length, and most of
the cases arising both in Congress and the Courts,
were cited and examined, and the conclusion was
reached both by the Committee and by the House,
that in order to give validity to the official acts of an




DUTIES OF ELECTION OFFICERS.         57
officer of elections, so far as they affect third parties
and the public, and in the absence of fraud, it is only
necessary that such officer shall have color of authority. It is sufficient if he be an officer defaclo, and not
a mere usurper. The report in this case, after quoting from numerous decisions, both in the House and
in the Courts of this country, continues as follows:
"The question, therefore, regarded in the light of
precedent or authority alone, would stand about as
follows:  The judicial decisions are all to the effect
that the acts of officers defacto, so far as they affect
third parties or the public, in the absence'of fraud,
are as valid as those of an officer dejure. The decisions of this House are to some extent conflicting;
the point has seldom been presented upon its own
merits, separated from questions of fraud; and in the
few cases where this seems to have been the case the
rulings are not harmonious. In one of the most recent and important cases, (Blair vs. Barrett,) in which
there was an exceedingly able report, the doctrine of
the courts, as above stated, is recognized and indorsed. The question is therefore a settled question in
the courts of the country, and is, so far as this House
is concerned, to say the least, an open one."
"Your committee feel constrained to adhere to the
law as it exists and is administered in all the courts of
the country, not only because of the very great authority by which it is supported, but for'the further
reason, as stated in the outset, that we believe the
rule to be most wise and salutary. The officers of
election are chosen of necessity from  among all
classes of the people; they are numbered in every
State by thousands; they are often men unaccus



058    OF THE QUALIFICATIO)NS, POWERS AND
tomed to the formalities of legal proceedings. Omissions and mistakes in the discharge of their ministerial duties are almost inevitable. If this House shall
establish the doctrine that an election is void because
an officer thereof is not in all respects duly qualified, or because the same is not conducted strictly
according to law, notwithstanding it may have been
a fair and free election, the result will be, very many
contests, and, what is worse, injustice will be done
in many cases. It will enable those who are so disposed, to seize upon mere technicality in order to
defeat the will of the majority."
~ 78. The report of the committee in this case was
adopted by the House nem. con. after a full discussion, (Cong. Globe, ]7uly 1870, pages 5179 to 5193,)
and the doctrine there asserted may now be rega-ded as the settled law of the House. The same point
was decided in the same way, and by the same
House, in the case of Eggleston vs. Strader, (2 Bartlett, 897,) and an admirable discussion of the question will be found in the report of the committee in
that case made to the House by Mr. Hale of Maine.
It is true that the writer of the report in the case of
Reid vs. 7ulian, (2 Bartlett, 822,) asserted the contrary doctrine, but the case was decided independently of that question. It turned upon a question
of fact, as to whether fraud was proven, so that this
case cannot be regarded as an authority against
Barnes vs. Adams, and Eggleston vs. Strader. The
doctrine of the latter cases was reaffirmed in the case
of Gooding vs. Wilson, 42d Congress.
~ 79. In the Courts of the country the ruling has
been uniform, and the validity of the acts of officers




DUTIES OF ELECTION OFFICERS.       59
of election who are such defacto only, so far as they
affect third persons and the public, is nowhere questioned. The doctrine that whole communities of
electors may be disfranchised for the time being, and
a minority candidate forced into an office, because
one or more of the judges of election have not
been duly sworn, or were not duly chosen, or do not
possess all the qualifications requisite for the office,
finds no support in the decisions of our judicial tribunals. We here refer to some of the leading cases.
In People vs. Cook, (4 Selden,) the Court says:
"The neglect of the officers of the election to take
any oath would not have vitiated the election. It
might have subjected those officers to an indictment
if the neglect was willful. The acts of public officers
being in by color of an election or appointment are
valid, so far as the public is concerned."
Again:,"An officer defacto is one who comes into office by
color of a legal appointment or election.  His acts
in that capacity are as valid, so far as the public is
concerned, as the acts of an officer de jure. His
acts in that capacity cannot be inquired into collaterally."
The same doctrine was laid down by the Supreme
Court of Minnesota, in the recent case of Taylor vs.
Taylor, el. al., (10 Minnesota, 107,):  One ground of
contest in this case was that "in certain towns at
said election the judges and clerks of said election
did not take the prescribed oath or any oath." The
Court say:
"If the votes of the -citizens are freely and fairly
deposited at the time and place designated by law,




w60    OF THE QUALIFICATIONS, POWERS AND
the intent and design of the election are accomplished. It is the will of the electors thus expressed
that gives the right to the office, and the failure of
the officers to perform a mere ministerial duty in relation to the election cannot invalidate it if the electors had actual notice and there was no fraud, mistake, or surprise."
Again the Court say:
"If the officers of election fail to perform their
duty, the law provides a penalty; but the election is
not necessarily rendered void."
Also, the Supreme Court of Pennsylvania, in the,case of Baird vs. Bank, of Washington, (11 KS>. - R.
414.) We quote a sentence from the opinion in this
case:
"The principle of colorable election holds not only
in regard to the right of electing, but of being elected. A person indisputably ineligible may be an officer defacto by color of election."
Also, the Supreme Court of Illinois, in Pritchett el.
al. vs. The People, (1 Gi/m., 529.) In the course of
the opinion the Court say:
"It is a general principle of the law that ministerial
acts of an officer de faclo are valid and effectual
when they concern the public and the rights of third
persons; although it may appear that he has no legal,or constitutional right to the office. The interests of
the community imperatively require the adoption of
such a rule."
The same Court, in The People vs. Ammons, (5
Gilm., 107,) hold the same doctrine, and state it in
this language:
"The proof offered would have shown that he was




DUTIES OF ELECTION OFFICERS.       61
an officer de facdo, and as such his acts were as binding and valid when the interests of third persons or
the public were concerned, as if he had been an officer de jure."
The Supreme Court of Missouri, in St. Louis
County Court vs. Sparks, [10 Mo. 121,] says:
"When the appointing power has made an appointment, and a person is appointed who has not the
qualifications required by law, the appointment is
not therefore void. The person appointed is defacto
an officer; his acts in the discharge of his duties are
valid and binding.    *    *     *    A statute
prescribing qualification to an office is merely directory, and although an appointee does not possess the
requisite qualifications his appointment is not therefore void, unless it is'so expressly enacted."
The supreme court of California, in the case of
Whkiley vs. McKune, (10 Cal., 352,) hold the same
doctrine. In this case the election of McKune to the
office of district judge was contested upon the ground
that "the officers conducting the election in a given
district were not sworn as the election laws require."
No fraud being shown the election was held valid,
notwithstanding such failure of the officers to be
sworn.
The supreme court of New York discusses this
question in an elaborate opinion in the case of The
People vs. Cook, (14 Barbour, 259,) from which we
quote a few sentences:
"It becomes important in this case to determine
whether the objections which are taken to the inspectors of elections in the several cases presented in the
bill of exceptions, are of that character which should




.66 2  OF THE QUALIFICATIONS, POWERS AND
be held to invalidate the canvass in these several localities. These objections are of a two-fold character, extending to the regularity or legality of their
appointment and to their omission to qualify by taking the proper oath of office.                It
is sufficient that they were inspectors de facto. The,
rule is well settled by a long series of adjudications,
both in England and this country, that acts done by
those who are officers defacto are good and valid as
regards the public and third persons who have an
interest in their acts, and the rule has been applied
to acts judicial, as well as to tliose ministerial in their
character. This doctrine has been held and applied
to almost every conceivable case.  It cannot be profitable to enter into- any extended discussion of the
cases. The principle has become elementary, and
the cases are almost endless in which the rule has
been applied."
So, in the case of Greenleaf vs. Low, [4 Denio
168,] it was held that a person elected to the office
of justice of the peace, who neglected to take the
oath of office and to give the security required by
law, is nevertheless in office by color of title, and his
acts are valid as regards the public and third persons. The Court say:
"Stifficient facts appeared to show that Jones was
a justice of the peace de facto at the time he rendered the judgment in question.  He came into his
office by color of title. It is a well settled principle
that acts done by such an officer are as valid, so far
as the public or the rights of third persons are concerned, as if he had been an officer de jure, and that




DUTIES OF ELECTION OFFICERS.        (13
the title of the office cannot be collaterally inquired
into."
Exactly the same point was decided in the same
way in the case of Weeks vs. Ellis, [2 Barbour,. 324,]
where a justice of the peace had entered upon the
duties of his office withou.t taking the oath prescribed by law.
And so, likewise, in the case of Keyser vs. Mc
Kisson, [2 Rawze, 139,] it was held that the failure
of county commissioners to take the oath prescribed
by the constitution of Pennsylvania did not invalidate
their acts as such, where the public or third persons
were concerned.
So, in the case of McGregor vs. Baich, [14 Vermont, 428] it was held that, although a person could
not legally hold the office of justice of the peace at
all while holding the office of assistant postmaster
under the United States, yet, having entered the former office under the forms of law, he was a justice
of the peace defacto, and his acts as such were valid
as to third persons and the public.
~ 80. A mere usurper in an office can have no
authority, and can perform nQ valid official act. It
is enough if he possess color of authority, but without this, his acts are void even as to third parties
and the public. It was accordingly held that where
certain persons were chosen county officers in an
unorganized county in a territory, by a public meeting without the shadow of legal right or authority,
and commissioned as such by the governor, who also
acted without any color of right or authority, they
were usurpers, and that an election held under their
authority was void.  [Daily vs. Eslabrook, 1 Purilelt




64     OF THE QUALIFICATIONS, POWERS AND
299.] In the same case the rule was laid down that
no valid election can be held in an unorganized county,-and that a county cannot be considered as organized until there has been an election of county
officers.
~ 81. It is well settled that the duties of canvassing officers are purely ministerial, and extend only to
the casting up of the votes and awarding the certificate to the person having the highest number; they
have no judicial power. In State vs. Steers, (44 Mo.,
223,) which was a case in which the canvassing board
had undertaken to throw out the returns from one
voting precinct for an alleged informality, the court
said: " When a ministerial officer leaves his proper
sphere, and attempts to exercise judicial functions,
he is exceeding the limits of the law, and guilty of
usurpation."    And again, "To permit a mere ministerial officer arbitrarily to reject returns, at his mere
caprice or pleasure, is to infringe or destroy the
rights of parties without notice or opportunity to be
heard, a thing which the law abhors and prohibits."
~ 82. But of course it does not follow from this
doctrine that canvassing and return judges must receive and count whatever purports to be a return,
whether it bears upon its face sufficient proof that it
is such or not. The true rule is this: they must receive and count the votes as shown by the returns,
and they cannot go behind the returns for any purpose,
and this necessarily implies that if a paper is presented, as a return, and there is a question as to
whether it is a return or not, they must decide that
question from what appears upon the face of the paper itself. Thus, in New York, it has been held that




DUTIES OF ELECTION OFFICERS.        65
the duties of the canvassers were " to attend at the
proper office and calculate and ascertain the whole
number of votes given at any election and certify
the same to be a true canvass; this is not a judicial
act, but merely ministerial; they have no power to
controvert the votes of electors.  [People vs. Van
Slyck, 4 Conn. 297, 323.) To the same safe effect is
the ruling in ex parle Heath, (3 Hill, 47.)
~ 83. And in Morgan vs. Quackenbush (22 Barb.
77) we find this language: "they, (the canvassers) are
not at liberty to receive evidence of any thing outside of the returns themselves; their duty consists
in a simple matter of arithmetic."  See also, Thompson vs. Ewing, (1 Brewst. 77,) where it is laid down
that the return judges cannot enquire into a question of fraud.  See also, Stale vs. The Governor, 1
Dutch. V.: 7. 348. Brown vs. O'Brien,'2 Ind. 483.
Stale vs. 7ones, 19 Ind. 365.  People vs. Kilduff  15
Ill., 500. People vs. Head. 25 Ill., 328.  In the latter case the court say "they may probably judge
whether the returns are in due form, but after that
they can only compute the votes cast for the several
candidates and declare the result," But in determining as to the form of the returns they must consider the substance, and not be too technical. If
there is a substantial compliance with the law it is
enough.
~. 84 The doctrine that canvassing boards and
return judges are ministerial officers possessing no
discretionary or judicial power, is settled in nearly
or quite all the States:
Dishon vs. Smith, 10 Iowa, 212.
State vs. Cavers, 22 Iowa, 343.
5




66     OF THE QUALIFICATIONS, POWERS AND
Att'y General, vs. Barstow, 4 Wisconsin, 749.
People vs. Van Cleve, 1 Michigan, 362.
Thonmpson Circuit Judge, 9 Alabama, 338.
Mayo vs. Freeland, 10 Missouri, 629.
State vs. Harrison, 38 Missouri, 540.
State vs. Rodman, 43 Missouri, 266.
State vs. Steers, 44 Missouri, 228-9.
Bacon vs. York Co., 26 Maine, 491.
Taylor vs. Taylor, 10 Minnesota, 107.
O'Farrall vs. Colby, 2 Minnesota, 180.
Marshall vs. Kerns, 2 Swan, Tennessee, 66.
In Att'y Genl. vs. Barstow, supra, the Supreme
Court of Wisconsin say that the canvassing officers
"are to add up and certify by calculation the number
of votes given for any office; they have no discretion to hear and take proof as to frauds, even if
morally certain that monstrous frauds have been
perpetrated."
~ 85. In Morgan vs. Quackenbush, [22 Barb.,
NV. Y. 72,1 this doctrine was again asserted. It was
there held that it was the duty of the canvassing
board to canvass the returns and declare the result, and that this was a purely ministerial act.
They are judges of nothing, and not allowed to receive evidence of any thing? outside of the returns
themselves, and hence, they acted illegally in receiving affidavits of fraudulent practices at the polls and
acting upon such evidence. It was, however, also
held, that their determination, although based upon
illegal evidence, must be received as primafacie evidence that the person declared elected was entitled
to the office, and that in attempting afterwards to
recanvass the vote and set aside their first certificate
they transcended their authority, and assumed a pow



DUTIES OF ELECTION OFFICERS.        67
er belonging only to a tribunal authorized to try cases of contested elections under the law.
~ 86. There are statutes in some of the States
which expressly confer upon a board of canvassing
officers the power to revise the returns of an election, to take proofs, and in their discretion, to reject
such votes as they deem illegal. Such a statute exists in Texas, [See Giddings vs. Clark, 42d Congress,]
and in Alabama. [See Norris vs. Handley do.,] and
in Louisiana and Florida. Although this is an extraordinary, and a dangerous power, when placed in
the hands of a board of this character, with such inadequate facilities for obtaining legal evidence and
deciding upon questions of fraud, yet it seems that
such statutes are not unconstitutional. And it has
been held by the House of Representatives of the
United States that the action of such a board, in pursuance of the power thus conferred, is prima facie
correct and to be allowed to stand until shown by
evidence to be illegal or unjust. [See cases last above
cited.]
~ 87. The doctrine that the acts of an officer of
election, within the scope of his authority, are presumed to be correct, is strongly stated and ably argued in Liltell vs. Robins, (1 Bartleft, 138.) The rule
is here placed upon two grounds,, viz: first, that the
presumption is always against the commission of a
fraudulent or illegal act, and secondly, that the presumption is always in favor of the official acts of a
sworn officer.
~ 88. In general, where a statute requires an official act to be done by a given day, for a public purpose, it must be construed as merely directory in re



68     OF THE QUALIFICATIONS, POWERS AND
gard to the time. Accordingly, it is uniformly held
that a statute requiring an officer or board to certify
the result of an election, or in any way to make
known the result, or to issue a commission on or before a given day, or within a given number of days
after the election, is directory and not mandatory.
Such acts are valid though performed after the expiration of the time. (Exparte Heath, ec at., 3 Hill, 42.)
This doctrine has been uniformly maintained by
the courts, and nothing is better settled.  (People vs
Allen, 6 Wend. 486, and cases there cited.  Colt vs.
Eves, 12 Conn., 243-253 to 255, and cases cited.)
~ 89. If the officers conducting an election adopt
and enforce an erroneous rule as to the qualification
of voters, which prevents certain legal voters, who
offer to vote, from giving in their votes, and being
made known, prevents other legal voters similarly
situated from offering to vote, the election may be
set aside, especially if it appear that such votes if
offered and received would have changed, or rendered doubtful, the result. [Scranton Borough Eleclion, [Brightley's Election Cases, 455.]  After a decision has been made by the election officers affecting the right of a class of persons to vote, and that
decision becomes known, it is not necessary that every voter belonging to such class should offer his
vote and have it formerly rejected. Nor is it necessary to prove in such a case how such person whose
vote was excluded would have voted, if permission
had been given; to require this, would be to take
away the secrecy of the ballot.
~ 90. Where an election district is, by the enactment of a law, divided into two separate districts,




DUTIES OF ELECTION OFFICERS.        69
with two separate places of holding an election, the
functions of the election officers of the old district
are destroyed, and they cannot act in either of the
the new districts into which the old one is divided.
It would be otherwise if part of an old district was
formed into a new one, and if provision was only
made for the new one. That would not annihilate
the old district, but only change its boundaries. The
forming of one old district into two complete new
ones, does annihilate the old, and it is well settled,
that the official functions of local officers fall with
the political annihilation of the locality for which
they were chosen or appointed.  [Penn. Dist. Eleclion Case, BrightlZey's Election Cases, 617. North
Whitehall vs. South Whitehadll, 3 S. & R. 121.]
~ 91. It is, as we have already seen, well settled
that the acts of public officers within the sphere of
their duties, must be presumed to be correct, until
the contrary is shown.  [Goggin zvs. Gilmer, 1 Bartett, T0.  Giddings vs. Clark, 42d Congress.]  If,
therefore, the law allows the officers of the election,
upon the happening of certain contingencies, to adjourn the election for one or more days,-if it be
shown that they did in fact adjourn-it will be
presumed that the adjournment was proper. And
so, if the law empowers a board of returning officers
to revise the returns, and it appears that they have
exercised such authority, their action must stand until shown to have been wrong. Further illustrations
of this rule are not necessary, as it is well settled
and generally understood.
In Goggin vs. Gilmer, [supra] it was further held,
and very properly, that where the officers of the




70     OF THE QUALIFICATIONS, POWERS AND
election were authorized in case of inclement weather, the rise of water courses by rain, or the assembling of a body of voters too great to be accommodated in one day, to adjourn the election for not
more than three days,-and where there was such
an adjournment, even if the officers were mistaken as
to the happening of any of these contingencies, the
election should not be declared illegal and void in
the absence of fraud. The officers of the election
in such a case are the judges of the necessity for an
adjournment, and their decision upon that point, in
the absence of fraud is final. The power of adjournment in such cases is discretionary with the officers of election, and an honest error in its exercise
is not fatal to the election.
And this is unquestionably the sound doctrine,
notwithstanding a contrary decision in one of the
earlier cases, from the same State. (Basset vs.
Bailey, C1. &' H. 254.)  In this latter case the committee went into inquiry as to whether in point of
fact the contingency did or did not happen on which
rested the authority of the sheriff to adjourn the
election, and finding that in their opinion it did not
happen, they ruled that the adjournment was illegal
and rendered the subsequent proceedings -illegal.
Thecase, however, did not turn upon this question,
and for this reason, perhaps, it was not more carefully considered. A similar question arose in the
case of Trzig  vs. Poeston, [Cl. e H., 78,] and it was
there held that an adjournment of an election by the
sheriff under a statute giving him discretionary
power to adjourn, in case of rain, was presumed to
be a valid adjournment.




DUTIES OF ELECTION OFFICERS.      71
~ 93. A canvassing board having once counted
the votes, and declared the result according to law,
has no power or authority to make a recount.
When this duty is once fully performed, it is performed once and forever, and cannot be repeated.
[Bozwen vs. Hixon, 45 Mo., 350, Gooding vs. Wilson
42d Congress.] In the former case the Court say
"To suppose that it could be renewed-that the
canvass of one day could be repeated the next, and
counter certificates be issued to different contestants
as new light -or influence was brought to bear upon
the mind of the clerk would render the whole proceeding a farce." And in the latter case the report
of the committee has this language:
" On examination of precedents, it does not appear
that this House favors the setting aside of official
and formal counts, made with all the safeguards required by law, on evidence only of subsequent informal and unofficial counts, without such safeguards.
No instance was cited at the hearing where the person entitled by the official count was deprived of his
seat by a subsequent unofficial count. On principle
it would seem that if such a thing were, in the absence of fraud in the official count, in any case admissible, it should be permitted only when the ballot
boxes had been so kept as to be conclusive of the
identity of the ballots, and when the subsequent
count was made with safeguards equivalent to those
provided by law. In the absence of either of these
conditions, the proof, as mere matter of fact, and
without reference to statutory rules, would be less
reliable, and therefore insufficient."
And see also Hadley vs. City of Albany, 33 IV. Y.




72    OF THE QUAI,IFICATIONS, POWERS AND
603. Harlt vs. Harvey, 32 Barb., 55. Ramsay vs.
Calaway, 15 La. An. 464.  Chrisman vs. Anderson,
1 Bartlett, 328.
~ 94. In Minnesota, it has been held, in accordance with the principle just stated, that if the board
of canvassers, after canvassing the votes, adjourn
without day, their power in the premises is at an end,
and they cannot re-assemble, neither can a court, by
mandamus, compel them to re-assemble or give them
any power in case of their so doing. (Clark vs.
Buchanan, 2 Minn., 346.)
~ 95. If a voter, upon being challenged and questioned, admits that he has not been naturalized, or,
that his naturalization certificate was issued by some
court which the judges know had no jurisdiction of
that subject, they may well decline to administer the
oath, or to accept the vote. But the judges have
no right, in California, to require the production of
the certificate of naturalization. [People vs. Gordon,
5 Cal., 235.]  And a similar rule prevails in most of
the States.
~ 96. In Kline vs. Myers, (1 Bartlett, 574;) the
house refused to order a recount of ballots upon the
request of the contestant. One reason was, that the
contestant did not offer evidence sufficient to show
even presumptively that the original count was erroneous or fraudulent. But another reason was the
great danger of attempting to set aside the official
count by a re-opening of the boxes, and a recount
of the ballots, months after the election. And upon
this latter point the committee, in their report, say:
"To adopt a rule that the ballot boxes should be
opened upon the mere request of the defeated can



DUTIES OF ELECTION OFFICERS.      73
didate, would occasion more fraud than it could possibly expose. The number of ballot boxes in each
congressional district is seldom less than fifty, and
often more than two hundred. They are usually
left in the care of a magistrate or some township
officer, by whom they are deposited in no safer place
than an upper shelf in a public office. The opportunities of tampering with the boxes thus scattered
through the district, would be abundant, and if it
was known in advance that a second count could be
had without discrediting the first, the temptations to
do so would be strong. It makes no difference in
settling the rule that in this particular case the votes
have been carefully guarded by the Mayor and Recorder, under a special law for the city of Philadelphia. The fact would only strengthen the confidence in the result of a recount in this case, but
does not show the propriety of establishing a general rule, authorizing a recount whenever asked. It
should be remembered that the fact sought is not
what the ballot boxes contain six months or a year
after the election, but what they did contain after
the last vote was deposited on the day of the election. Certainly an impartial, accurate and public
count then by the sworn officers would be better evidence of that fact than any subsequent count not
more impartial, and not presuming to be more accurate than the first, and after boxes have long been
exposed to the tampering of dishonest partisans."
~ 97. By a statute of Massachusetts "the Mayor
and Aldermen and Clerk of each city" are required
forthwith after an election to examine the returns
from each ward, and if any error appears therein,




74     OF THE QUALIFICATIONS, POWERS AND
"they shall forthwith notify" the ward officers, "who.
shall forthwith make a new and additional return
under oath in conformity to truth." It is manifest
however, that it was not intended by this statute to
authorize an amended return, unless made " forthwith," and before the ballots, records, and election
papers have passed out of the hands of the returning officers. These amended returns are required
by the statute to be " received by the Mayor and'
Aldermen and city Clerk, at any time before the expiration of the day preceding that on which they are
required by law to make their returns or declare the
result of the election in said city." They cannot be
made after the result is declared, and their value
must depend upon their being made by the returning officers, without delay. (Sleeper vs. Rice, 1 BartlZet, 472.)
~ 98. A statute of Kentucky in force in 1833, required the certificate of election of Representatives
in Congress, to be signed by all the sheriffs of the
counties composing the district.  In the case of
Letcher vs. Moore, (Cl. & H., 715,) the credentials
presented were signed by the sheriff of four out of
five of the counties in the district, and the question
whether this was sufficient to give the holder of it
the right to the seat primafacie, was debated in the:
house at great length, but was not decided, because,,
pending its discussion, both parties agreed to waive
their claim to a seat until the case could be heard
upon the merits. It would seem that the vote of
one county was not canvassed at all by the sheriffs,
it having been withheld by the sheriff having it in
charge, without any sufficient cause, and it is evident




DUTIES OF ELECTION OFFICERS.       75,
that the house had good reason to believe that the
vote of that county, if it had been canvassed by the
board of sheriffs, would have changed the result and
given the credentials to Letcher, instead of Moore.
Under such circumstances the house hesitated, and
very properly, to accept the certificate of a majority
of the sheriffs, based upon a canvass of but four of
the five counties of the district. The case did not
come properly within the rule that the certificate of'the majority of a board, is the certificate of the
board, for while it is true, ordinarily, that less than
the whole number may make a valid certificate in
such a case, it must be upon accanvass of the whole vote
of the district. If a part of the vote is omitted and
the certificate does no more than to show that a
canvass of part of the vote cast shows the election
of a particular person, it is not even primafacie evidence, because non constat that a canvass of the
whole vote would produce the same result.
~ 99. The act of Congress of May 31, 1870, (16
Stat. at Large, 145, Sec. 22,) provides for the punishment of " any officer of election" who shall "fraudulently make any false certificate of the result of
any election in regard to a Representative" in Congress.  In the case of The United States vs. Clayton,
in the Circuit Court of the United States for District of Arkansas, the question arose whether the
Governor of a State is liable to indictment and punishment under this act. By the statute of Arkansas
it was the duty of the Governor to grant a certificate
to the person duly elected Representative in Congress, and the indictment in this case charged the
defendant, as Governor of Arkansas, with having




76    OF THE QUALIFICATIONS, POWERS AND
falsely and fraudulently issued a certificate declaring
John Edwards elected Representative in Congress
in the forty-second Congress, from the third district
of that State, when in truth and in fact the returns
then on file in his office showed that one Thomas
Boles was duly elected.  (See American Law Regisler, Vol. 10, p. 739.) A demurrer was interposed
which raised the question above suggested, and it
was sustained, the Court (Dillon 7.) being of the
opinion that the Governor of a State is not an"officer of election" within the meaning of the said act
of Congress. It was deemed by the Court highly
improbable that Congress would (even if its power
-to do so be conceded,) provide for the trial and imprisonment of the Governor of a State for omitting
or fraudulently performing, duties imposed upon
him by State laws.
~ 100. The fact that the officers of an election
caused the names on the registration list to be copied,and arranged alphabetically, so that the names might
be more readily found as the voters presented themselves to vote, and that they used this alphabetical
-copy in connection with the original, will not affect
the validity of the poll.  (Hogan vs. Pile, 2 Bartlett,
281.)
~ 101. In the case last cited one of the grounds
of contest was, that the County Court being authorized to fix the places of voting, and arrange the voting precincts, had performed this duty so unfairly
and improperly as to prevent a full vote for contestant. Upon this point the committee say:'"The legislature had the power to fix the voting
districts or provide by law that the County Court




DUTIES OF ELECTION OFFICERS.        77
should do so, and the law of Missouri having imposed upon the County Court the duty of establishing voting places, that Court had the right to fix tne
number in its own discretion, and the exercise of
that discretion cannot be reviewed. If, indeed, the
Court should fraudulently refuse to establish voting
places in such a manner as to disfranchise the citizens for partisan purposes, it might be necessary to
set aside the entire election."
No doubt the true rule is here indicated, and it is
this. If the board or officer having the power to fix
the voting places, shallfraudulently so arrange them
as to disfranchise a portion of the voters, and thus
defeat the will of the electors, it would become necessary to set aside the election. If the fraudulent
purpose must, in such a case, be proven, it may be
established by circumstances.
~ 102. But the question may arise whether, even
in the absence of proof of a fraudulent purpose, the
fixing of the voting places in such a manner as to
prevent a full and free election, must not render the
election void? As for example, if all the voters of
a county or city are required to vote at a single
polling place, and if it should appear that the voters
were so numerous that it was impossible for them
all to vote, and that a part were in fact, for this reason, prevented from voting, in such a case, we think,
the election should be held void without further proof.
Perhaps, from these facts, a fraudulent purpose on
the part of the board or officers, whose duty it was
to fix suitable and convenient voting places, would
be presumed, but if not, then the election should be
held void, upon the ground, that whatever in point




'78     OF THE QUALIFICATIONS, POWERS AND,of fact prevents a fair and free election, whether so
intended or not, must render the election null and
void. (b.)
~ 103. Where the law requires that the polls shall
be kept open until sunset, this is probably equivalent to declaring that they shall be closed at sunset,
though upon this point the committee in Hogan vs.
Pile, supra, refrained from expressing an opinion. It
was, however, held in that case that the polls having
been regularly closed at sunset, they could not be
legally opened again during the evening, and there
is no doubt but that if the polls are once regularly
closed, the officers of the election cannot again open
them. It is to be presumed that all voters who have
not voted will have notice of the closing of the polls;
that being a proceeding according to law they are
bound to know it, and act upon it; but the re-opening is a proceeding of which no one will be bound
to take notice, and if some do take notice of it, and
deposit ballots, they are void as being both unlawful
and a fraud upon the rights of other voters.
~ 104. The law is well settled that statute certifying officers can only make their certificates evidence
of the facts which the statute requires them to certify, and when they undertake to go beyond this,
and certify other facts, they are unofficial, and no
more evidence than the statement of any unofficial
person.  (Switzler vs. Anderson, 2 Bartlelt, 374.)
This rule of course applies to election returns, and
(b.) Probably, there should be an exception to this rule, in cases
where the legislature, by law, fixes the places of voting, and where no
other authority has power to alter or change them, It would, probably,
not be competent to show that the legislature had not fixed enough
polling places, or had not established them in the right places.




DUTIES OF ELECTION OFFICERS.        79
to all certificates which are by law required to be
made by officers of election, or of registration, or
by returning officers. They can only certify to such
facts as the law requires them to certify. The certificate of such an officer is not, however, vitiated by
the fact that it contains the certification of facts outside of those which the officer has a right to certify.
If it in fact certifies the proper facts it is good, and
the remainder of the certificate is to be. rejected as
surplusage.
~ 105. The doctrine of Gooding vs. Wison, (supra,)
was strongly asserted in State vs. Dunniwort/, [21
Ohio, 216,] where it was held that the officers of an
election board after its regular dissolution are funclus officio, and their subsequent acts in that character
unauthorized; and that where a municipal election
board had regularly dissolved, and the box in which
the canvassed ballots were placed had remained five
days in an exposed place of easy access, a subse~quent tally sheet made on the fifth day on re-count of
ballots then found in the box, by four officers of the
municipality, some of whom were members of the
election board, will not be received to impeach the
original canvass and tally sheet.
~ 106. The inspectors of an election having received the vote of a person, and deposited the same
in the box, cannot afterwards enter into any inquiry
as to the right of such person to vote. There are
two sufficient reasons for this rule. In the first place,
the voter is a necessary party to any such investigation, and in the second place, the inspectors cannot
be presumed to know how any person voted, and,
therefore, cannot know which ballot to exclude. The




80    OF THE QUALIFICATIONS, POWERS AND
rule is, therefore, that the moment the ballot is deposited, all control over it, and all power to inquire
as to its legality, by the officers of the election, is
ended. (Harat vs. Harney, 32 Barbour, 55.)
~ 107. A statute of New Hampshire required the
town clerk to record the vote for representative in
Congress, as counted and announced in his presence
by the selectmen, and to send a copy thereof to the
secretary of state. The statute further provided as
follows: "If the clerk of any town shall make an incorrect or insufficient record or return of the votes
given therein, at any meeting for any officer, the tribunal by whom said votes are opened and corrected
may require said clerk, at his own expense, to come
in and amend said record or return, according to the
facts of the case."
It was held by the Supreme Court of that State
that this statute only authorizes town clerks when
required, to make their record to correspond with
the declaration of the vote, as publicly made by the
moderator, and does not authorize them to make by
amendment a record which they could not have
made in the first instance.  (Opinion of the Justices,
53, N. H. 640.)
~ 108. When the law designates a place for holding an election for a given precinct, and provides a
set of officers to conduct the same, and makes no
provision for more than one voting place or ballot
box within such precinct, it is not lawful for the officers of election to provide two or more ballot boxes
at different places within such precincts. Especially
is this true of an election for Representatives in
Congress, at which, under the act of Congress of




DUTIES OF ELECTION OFFICERS.       81
February 28, 1871, a supervisor of election appointed under'the authority of the United States, is entitled to be present. If the places of voting within
a precinct may be multiplied, the local authorities
may render it impossible for the supervisor to be
present at the place for holding the election as required by law. Besides it is plain that for many
other reasons the power to multiply voting places
would be an exceedingly dangerous power and one
which might be used for purposes of corruption and
fraud.  (Sloan vs. Rawles, 43d Congress.)
CHAPTER III.
OF THE TIME, PLACE AND MANNER OF HOLDING
ELECTIONS, AND OF NOTICE.
~ 109. It is, of course, essential to the validity of
an election, that it be held at the time, and in the
place, provided by law. An interesting and important question arose, however, in many of the States
of the Union, during the progress of the great rebellion, as to the validity of certain statutes, authorizing persons in the military service of the United
States to vote while absent from their States, engaged in such service.
Tile constitutionality of these statutes generally
turned upon the question whether it was competent
for a State legislature to authorize a citizen to vote
elsewhere than at the place of his residence. In the
6




82    OF THE TIME, PLACE AND MANNER OF
constitutions of most of the States there were provisions requiring that each elector should vote at
the place of his residence, and not elsewhere. The
Constitution of Michigan provided that the voter
should have resided "in the township or ward in
which he offers to vote, ten days next preceding such
election." The legislature of that State enacted that
persons in the military service possessing the qualifications provided by the Constitution, should be allowed to vote wherever they might be, whether
within the limits of the State or not. In the case of
Baldwin vs. Trowbridge, 2 Bartlett, 46, the House of
Representatives held this statute to be constitutional,
in so far as it related to the election of Representatives in Congress. The decision was placed by the
majority of the committee of elections, in their report, upon the ground that where there is a conflict'between the State Constitution and a legislative act,
in regard to fixing the place of an election for such
Representatives, the power of the legislature is par-:amount. This was held as the necessary effect of
Article one, Section four, of the Constitution of the
United States, which provides as follows:
"The times, places, and manner of holding elections for Senators and Representatives shall be pre-:scribed in each State by the legislature thereof; but
the Congress may at any time, by law, make or alter
such regulations, except as to the places of choosing
Senators."
~ 110. It was held that, by this provision, the power is conferred upon the legislature of the State, and
that in fixing the place of the election for representatives in Congress, it acted under, and derived its




HOLDING ELECTIONS, AND OF NOTICE.    83
authority, from the Constitution of the United States,
and not from the Constitution of Michigan. This
view of the subject was ably presented in the report
made to the House by Mr. Scofield, of Pennsylvania. The reasoning of the report may be thus stated: The place of the election, for representative in
Congress, is to be fixed by the legislature of the
State. So declares the National Constitution. But
in Michigan, the Conventionwhich framed the State
Constitution, undertook to determine the place
where all such elections should be held. This was
an attempt to take from the legislature the power
plainly conferred by the Federal Constitution. In
so far, therefore, as the Constitutional convention
undertook to fix the "place" for "holding elections
for representatives" it went beyond its authority,
because it was not "the legislature of the State."
~ 111. A very similar question arose in Sziel vs.
Thayer, (2 Bartlelt, 349.) In that case, the constitution of Oregon had fixed the time of holding the
election for representative in Congress, and the legislature had not acted upon the subject. The case
is, therefore, to be distinguished from Baldwin vs.
Trowbridge, in this, that the former was not like the
latter, a case of conflict between the State Constitution and any act of the State legislature. It is true,
that the committee, in their report, express the opinion that the Constitution of the State had fixed " beyond the control of the legislature" the time for
holding the election for representative in Congress;
but this point was not necessarily involved in the
case, and it is evident, from the debate in the House,
that there was a wide difference of opinion upon it.




84    OF THE TIME, PLACE AND MANNER OF
The case does decide, that where a State is admitted
into the Union with a Constitution which fixes a time
for holding the election for representatives in Congress, the time thus fixed will be regarded as the
proper and legal time, but it does not decide, because it does not involve the question, whether that
time can be' subsequently changed by the legislature
of the State.
~ 112. But the reasoning in Baldwin vs. Trowbridge, whether sound or not, applies, of course, only
to elections for representatives in Congress, since
it was within the province of the constitutional convention to fix the times and places for holding all
other elections; and it would seem quite clear that
under the Constitution of Michigan the act in question, in so far as it applied to State elections, was
unconstitutional. Where a constitutional provision
clearly requires the citizen to vote at the place of
his residence, it is certainly not within the power of
the legislature to provide that he may vote elsewhere, and that a soldier has no residence in the
field or camp, is also a clear proposition.  (Chase vs.
Miller, 41 ]Pa., Slate R., 403. Bouriand vs. Hildrelh,
26 Cal., 161.  QOpinzion of 7udges, 30 Conn., 591.
Opinion of 7ustices, 44 N. H., 633.)  In Iowa a statute of this character was held constitutional, upon
the ground that a district residence was not required
by the Constitution of that State. (Morrison vs.
Springer, 15 Iowa, 304.) See also Lehman vs. McBride, 15 Ohio, Stale R., 573, and Chandler vs. Main,
16 Wis., 343.
~ 113. In the Constitutions of some of the States
we find provisions not only fixing the qualifications




HOLDING ELECTIONS, AND OF NOTICE.    85
of voters, but also fixing the place of voting. WVhere
the Constitution stops with an enumeration of the
qualifications of an elector, and does not expressly
declare that the elector must vote at the place of his
residence, it is competent for the legislature to provide for the reception of votes out of the precinct
or county of his residence. [Morrison vs. Springer,
supra.]  So that the question must turn upon the
language employed in the particular constitution to
be construed.
~ 114. Those provisions of law which fix the time
or place of holding elections, are to be construed as
mandatory, and not as merely directory. The reason for this is obvious. Every voter is presumed to
know the law, and to be thereby informed as to the
time when, and the place where he may deposite his
ballot; but, if that time or place be changed without
proper authority and due notice, no voter can be
held as legally bound to take notice of the change,
and it can never be known how many voters have
been deceived thereby, unless, indeed, all the persons
entitled to vote should actually attend and vote at
the illegal place, which might, perhaps, be held as a
waiver of all objection thereto, provided the place
was within the voting precinct. As to the time of
thie election, of course the day cannot be changed
even by the consent of all the voters, and the general rule is, that if the polls are not kept open for
as many hours as the law directs, and if legal voters
in numbers sufficient to change the result, or to render it doubtful, are thereby deprived of the privilege of voting, the election must be set aside. A
few minutes delay in opening the polls will make no




86    OF THE TIME, PLACE AND MANNER OF
difference, but several hours delay, may render the
election void, and certainly will have that effect if the
party complaining of it can show that he has been
injured thereby.  (Chadwick vs. Melvin, Brightley's
Election Cases, 251, 68 Pa. State, 333. 7uker vs.
Commonwealth, 20 Pa., State R., 484. Dickey vs.
Hurlburt, 5 Cal. 343. People vs. Murray, 15 Cal.,,
321. Knowles vs. Yeates, 31 Cal., 82.)
~ 115. In Chadwick vs. Melvin, supra, the Supreme:
Court of Pennsylvania held that, to remove the place
of election three miles from that designated by law,
or from a village to a place a half mile therefrom,
and across a considerable stream, or from a designated school house to a vacant house more than half
a mile distant therefrom, without authority or any
absolutely controlling circumstances, must render the
election therein void, and in the course of the opinion Thompson, C. J. says: "A fixed place, it seems
to me, is as absolutely requisite according to the
election laws, as is the time of voting. The holding
of elections at the places fixed by law, is not directory; it is mandatory and cannot be omitted without
error. I will not say that in case of the destruction
of a designated building on the eve of an election,
the election might not be held on the same or contiguous ground as a matter of necessity-necessilas
non habet legem.  But then the necessity must be
absolute; discarding all mere ideas of convenience.'"
[See also 7ournal of House of Representatives of Pa.,
1856, page 204, case of Beck vs. McGhee. Miller vs.
English, 1 Zab., (N. 7.,) 3.17. Commonwealth vs.
Commissioners, 5 Rawle, 75. Marshall vs. Kerns, 2
Swan, 68. Faoster vs. Scarf, 15 Ohio State R., 535.]




IIOLDING ELECTIONS, AND OF NOTICE.    87
The same rule prevails where the place of holding
the election is fixed by a court, or by a board or officer, thereunto duly authorized by law. When once
legally fixed by proper authority, it can only be
changed by proper authority, and in the manner provided by law.
~ 116. While it is true, that notice is essential to
the validity of an election, it is not always essential
that the particular form or manner of giving notice,
which may be prescribed, shall be followed. It is essential that the electors should have notice of the
time, place and objects of the election. That is, they
should have knowledge of them, but an omission to
follow the particular mode provided by statute for
publishing such notice, may not render the election
void, and will not, if the electors have actual notice,
and do, in fact, take part in the election. This doctrine was laid down very broadly by the Supreme
Court of Iowa, in Dishon vs. Smilh (10 Iowa, 212.)
The Court in that case say: "The Courts have held
that the voice of the people is not to be rejected for
a defect or even a want of notice, if they have, in
truth, been called upon and have spoken. In the
present case, whether there were notices or not, there
was an election, and the people of the county voted,
and it is not alleged that any portion of them failed
in knowledge of the pendency of the question, or to
exercise their franchise."
~ 117. It is, doubtless, perfectly true, that where
the election has been held at the proper time, and
the proper place, and the electors have had notice
and participated in it, the want of such notice as the
law provides, will not render it void. But if it ap



88    OF THE TIME, PLACE AND MANNER OF
pear that due notice has not been given, and that a
portion of the electors have been thereby deprived
of their right to vote, and particularly, if the number thus deprived, is sufficient to have changed the
result if they had voted on one side or the other,in such a case the election is clearly void.
~ 118. The general rule upon this subject is given by Judge Cooley as follows: "Where, by the express provision of the statute, the election is to be
held after proclamation, or notice, announcing the
time or the place, or both, and where no such proclamation has been made, or notice given, the election
is void. But where both the time and the place of
an election are prescribed by law, every voter has a
right to take notice of the law, and to deposit his
ballot at the time and place appointed, notwithstanding the officer, whose duty it is to give notice of the
election, has failed in that duty. The right to hold
the election in such a case, is derived from the law,
and not from the notice. And this rulewill apply
to an election to fill a vacancy, if the same occurs
long enough before the election, to have become
generally notorious, and if it was in fact generally
known."  (Cooley, Constitutional Limitations, 603.)
~ 119. The doctrine, that want of formal notice
of an election will not render the election void, unless it appear that the failure to give such notice has,
in fact, either changed or rendered doubtful the result was recognized as early as 1796, by the House
of Representatives of the United States in Lyon vs.
Smith (Cl. &'e H., 101.)  In that case it appeared
that no notice had been given of the time and place
of holding the election in two towns of the district,




HOLDING ELECTIONS, AND OF NOTICE.    89
but as it did not appear that the votes of all the
freemen of those towns could have changed the result, if duly given, the House refused to set aside the
election.
~ 120. In the case of MckEune vs. Weller, (11 Cal.,
49,) the question whether a proclamation, giving notice of the holding of a special election, held to fill
a vacancy caused by the death of the incumbent,
was necessary to the validity of such election, is discussed at length. The authorities upon the subject
are there reviewed with care, and the conclusion is
reached that there is an important distinction to be
observed between general and special elections.
The time, place and manner of holding the former
being fixed by law, the electors may, and indeed
must, take notice of them, and as to such electors
the statutory requirement of public notice by proclamation or otherwise, may be regarded as directory only. But it was held that the statute requiring the Governor to issue his proclamation of election tofill vacancies, which occur not in the ordinary
way, by the expiration of the term, but by death or
resignation, before the term expires, is mandatory,
and an essential prerequisite to all such elections.
~ 121. In the same case it was further laid down
that an election cannot take place without statutory
regulation. All the efficacy given to the act of casting a ballot is derived from the law making power
and through legislative enactment, and the legislature must provide for and regulate the conduct of
an election, or there can be none.
The case, supra, was followed in People vs. Martin,
(12 Cal. 409.)




9(    OF THE TIME, PLACE AND MANNER OF
~ 122. A statute of the State of New York provided that the citizens of the several towns qualified.
to vote are required annually to assemble and hold
town meetings in their respective towns, at such place
in each town, as the electors thereof in their town meetinfg shallfrom tinme to time appoint, and if at any annual town meeting no place is fixed by the electors,
for the next annual town meeting, such town meeting shall be held at the place of the last annual town
meeting. The electors of the town of Northfield
at their annual town meeting in 1847, omitted to fix
the place for the annual town meeting in 1848, and
by reason of this omission the law fixed the place
at the Bull's Head tavern, where the previous annual meeting was held.  On the proper day, in
1848, the electors assembled at that place and organized, when a motion was made, in the presence
of the' electors assembled, "that the annual town
meeting for the year 1848 be held at the place aforesaid, until twelve o'clock at noon of that day, and
then be adjourned to the house of W. C. Martin,
within the town where it shall be held for the remainder of the day." This motion was carried, and.
the election was accordingly held at the one place
until twelve o'clock, and then adjourned to the other,
and there held the remainder of the day. The
Court of appeals of New York held, not without
some hesitancy, that this action was legal. (The People vs. Martin, 5 N. Y., 1 Selden, 22.)  Paige J., in
delivering the opinion in this case, says: "I confess
that I have had some difficulty in coming to this
conclusion, and I think that the power of adjourning
a town meeting to another time and place, may, un



HOLDING ELECTIONS, AND OF NOTICE.    91
der peculiar circumstances, be oppressively exercised, and lead to a defeat of the popular will. This
power ought not to be exercised except in a case of
extreme necessity." Under the same statute above
referred to, the Supreme Court of N. Y. held that
the electors on the town meeting being opened, had
a right to adjourn the meeting to the next day, to
be held at another place, and that the electors were
the exclusive judges of the necessity of the adjournment.  (Goodell vs. Baker, 8 Cow., 286.)  In both
these cases, however, the question was upon the construction of a statute, and it is very clear that neither the time nor place of holding an election can
be changed after being once legally fixed, unless.
such change is authorized by statute, and it may
also be observed that statutes which authorize an
adjournment to another place after the election has
been opened, are very objectionable and inexpedient. Some of the electors may not attend in the
early part of the day, and may, therefore, have no
notice of the change. Statutes ought to be, and
generally are provided, to allow a change of the
place of opening the polls, or holding an election, in
case of necessity, such as might arise from the destruction of the building designated for that purpose,
but aside from cases of this kind, adjournments, or
changes, are not as a general rule permitted.
~ 123. In a contested election case, very little attention should, ordinarily, be paid to mere irregularities in the proceedings of the election officers, which do not affect the real merits of the case.
Thus it was held by the Court of Appeals of New
York, in People vs. Cook, (8, AT. Y., 67,) that where the:




92    OF THE TIME, PLACE AND MANNER OF
evidence goes only to show an irregularity without
fraudulent intent, and by which nobody is injured,
the Court is not bound even to submit it to the jury
as an open question. The question, in that case,
was, whether ballots cast for Benjamin C. Welch jr.
and Benjamin Welch, should be counted for Benjamin Welch jr. Evidence was admitted to show the
voters' intention, and it was such as to leave no room
for doubt, that all these ballots were intended for the
latter, and the court, below, instructed the jury to
find accordingly. This rule was affirmed in the Appellate Court.
~ 1.24. And in Borleau's Case, tried before the
Court of Common Pleas of Philadelphia, it appeared
that in the afternoon of the day of election, one of
the clerks of the election became so much intoxicated as to be unfit for his duties, and, at the request
of the inspectors, one Samuel C. Coxe, acted as
clerk for the balance of the day, and until about three
*o'clock in the morning of the succeeding day, when
the clerk, having recovered from his debauch, appeared and signed the returns. Mr. Coxe was not
sworn and was a candidate for assessor at this election. Held, that these facts were not such as should
induce the court to set the election aside, and the
ground of the decision was, that the evidence did not
disclose any bad faith on the part of the officers, nor
any fraud.  (2 Parsons, 503; Brighlzey's Election
Cases, 268.)
~ 125. In the same case, it further appeared, that
-one. John Haines, a candidate for Judge, was occasionally in the room where the election was held, during its progress, and after the polls closed; that he




HOLDING ELECTIONS, AND OF NOTICE.    93
opened a few of the tickets, but being admonished,
desisted.  Several witnesses testified to his handling
tickets and to his intermeddling, and it is clear that
his conduct was improper in the extreme. But the
Court say that " it has not been pretended that this
election is in any particular tainted with actual fraud;
no evidence has been adduced either showing legal
votes to have been rejected, or illegal votes received;
the election seems to have been honestly conducted,'
and for these reasons the court declined to set it
aside.
~ 126. While it is well settled, that mere irregularity on the part of election officers, or their omission to observe some merely directory provisions of
the law, will not vitiate the poll, there has been
some confusion and conflict as to what we are to
understand by irregularities, and as to what provisions of statute are to be regarded as directory and
what mandatory. A few remarks upon this subject
will be proper in this connection. The language of
the statute to be construed must be consulted and
followed.  If the statute expressly declares any
particular act to be essential to the validity of the
election, or that its omission shall render the election void, all courts whose duty it is to enforce such
statute, must so hold, whether the particular act in
question goes to the merits, or affects the result of
the election, or not. Such a statute is imperative, and
all considerations touching its policy or impolicy,
must be addressed to the legislature. But if, as in
most cases, the statute simply provides that certain
acts or things shall be done, within a particular time,
or in a particular manner, and does not declare that




:94    OF THE TIME, PLACE AND MANNER OF
their performance is essential to the validity of the
election, then they will be regarded as mandatory if
they do, and directory if they do not, affect the ac-tual merits of the election.
~ 127. Those provisions which affect the time and
place of the election, and the legal qualifications of
the electors are generally of the substance of the
election, while those touching the recording and return of the legal votes received, and the mode and
manner of conducting the mere details of the election, are directory.  (People vs. Schermerhorn, 19
Barb., 540.)  The principle is that irregularities
which do not tend to affect results, are not to defeat,the will of the majority; the will of the majority is
to be respected even when irregularly expressed.
(Yuker vs. Commonwealth, 20 Penn. St. R., 493.  Car-,pen/er's Case, 2 Pars. 540.)
~ 128. The officers of election may be liable to
punishment for a violation of the directory provisions of a statute, yet the people are not to suffer on
account of the default of their agents. And see,
upon this general subject, the following authorities:
Piatt vs. People, 29 I/l., 72. Nardenburgh vs. Farmers & Merchants Bank, 2 Green, (A. 7.,) 68. Day
vs. Kent, 1 Oregon, 123. Taylor vs. Taylor, 20 Minn.,
107. People vs. Bales, 11 Mich., 362. McKinney vs.
O' Connor, 26 Texas, 5. 7ones vs. State, 1 Kansas,
279.  Gorham vs. Campbell, 2 Cal., 135. Spirague
vs. Norway, 31 Cal., 173.  Keller vs. Chapfman, 34
Cal., 635. Brightley's Election Cases, 448, 449, 450.
~ 129. This doctrine was again recognized, and
enforced in the case of Arnold vs. Lea, (CI. & HI.,
601,) —a case which affords an apt illustration of the




HOLDING ELECTIONS, AND OF NOTICE.    95
"rule. In this case it appeared that at one of the
voting places, the inspectors who were required by
law "to take charge of the ballot box" between the
adjournment on the first and the opening of the
polls on the second day of the election, delivered it
to the sheriff, and directed him to lock it up in some
place where it would be safe. The sheriff locked
the box up in a trunk, and left the trunk in a storehouse which was also locked. It was clear from the
-proof that the box was not tampered with, and that
no person had been injured by the irregularity, and
the House, therefore, refused to reject the vote.
It also appeared that, at one of the precincts, " a
large gourd was made use of by the inspectors for
the reception of the tickets, and upon the closing of
the polls on the evening of the first day, the gourd
was carefully stopped and tied up in a handkerchief,
and delivered to one of the inspectors for safe keeping; that the same was taken by him, to his home, and
locked up until next morning, and then returned.and used the second day." There was no evidence
of fraud or mismanagement in any other way.
This was in clear violation of the statute which required that the ballots be " placed in a box which
shall be locked or otherwise well secured." It also
appeared that some of the officers of the election
were not sworn as the law required. But the committee were of the opinion that " notwithstanding
some irregularities in conducting the election in a
number of precincts," it was " managed by the oficers appointed to hold the same, honestly and fairly.and impartially, and according to the spirit and
meaning of the law of the State of Tennessee, if




96    OF THE TIME, PLACE AND MANNER OF
not strictly within the letter of the statute, and that
a fair expression of public opinion has been obtained
at the several places referred to," and for these reasons the committee reported against excluding the
vote of these precincts, and the house adopted the
report.
~ 130. Under the laws of some of the States it
is necessary to keep separate boxes for the reception of ballots for State officers, and for members of
Congress. In cases where by mistake ballots have
been dropped into the wrong box, as, for instance,
ballots for a member of Congress placed in the box
for State officers, some question has been made
as to the right of the judges of the election to correct such mistake by removing such ballots from the
wrong box to the right one. In the lower house of
Congress it has been held that ballots once deposited in the wrong box were lost, and could not be
changed to the right one either by the voter or the
officers of the election.  (IWashburn vs. Rziley,
Clark and Hall, 679.)  But the same question arose
again in the House in the more recent case of Newland vs. Graham, (1 Bartlett, 5.)  In that case one
of the judges of the election testified that he and
the other judges finding that a few ballots had been
by mistake placed in the wrong box, had them
changed. There was no doubt as to the mistake,
nor that the judges acted fairly, and in good faith.
The committee submitted to the house the question
whether these ballots should be counted,-at the
same time, however, intimating very clearly their
opinion that they should be. In this case the recommendation of the committee was not adopted by the




HOLDING ELECTIONS, AND OF NOTICE.    97
house-or at least was adopted only in part, the
seat being declared vacant while the committee recommended the seating of the contestant.
~ 131. The question, therefore, being unsettled by
the decisions of the house, let us inquire what is the
safe and sound rule upon the subject. A little reflection will satisfy any one that the doctrine of the
report in Washburn vs. -Ripley, is open to grave objections. In the first place it puts it within the power
of a corrupt election officer, to deprive the voter of
his ballot, by designedly placing it in the wrong box;
and, in the second place, it accomplishes the same result, in case the ballot is placed in the wrong box by
accident or mistake.  It is a rule, well grounded in
justice and reason, and well established by authority
and precedent, that the voter shall not be deprived
of his rights as an elector, either by the fraud or the
mistake of the election officer, if it is possible to
prevent it. It does not appear from the report in
Washburn vs. Ripley, that any proof was offered to
establish the mistake, beyond the simple fact that
the ballots were found in the wrong box. It is evident that the proof should go farther than this. It
should be shown that the ballots were handed in by
legal voters, and deposited in the wrong box by the
mistake, accident, or fraud of the officer, and any
facts and circumstances tending to establish, or to
disprove this proposition should be brought out in
evidence.
~ 132. It is safe to say, that a mistake will always
be corrected, if it can be corrected, and therefore,
the purpose of the party seeking to get the benefit
of ballots cast into the wrong box, should be to
7




98    OF THE TIME, PLACE AND MANNER OF
prove that they were good and honest ballots and
were placed there by mistake, or without his fault.
Wherever this is clearly shown, the mistake may be
corrected, if not by the officers of the election, at
least by the tribunal trying the contest; but, if it is
not a clear case of mistake, or if there is any appearance of fraud on the part of the voter, the ballot
should be rejected. In other words, the party who,
in case of a contest, claims that ballots found in the
wrong box should be counted, should be put to the
proof that such ballots were fairly and honestly cast
by legal voters. It is unjust that the voter should
be disfranchised, because the officer receiving his
ballot, deposited it in the wrong box. In determining this and similar questions, in cases of contested
elections, it should be kept constantly in mind, that
the ultimate purpose of the proceeding is to ascertain, and give expression to, the will of the majority,
as expressed through the ballot box, and according
to law. Rules should be adopted and construed to
this end, and to this end only.
~ 133. The view here expressed is fully confirmed
by the decision of the Supreme Court of Michigan
in People vs. Bales, (11 MPlich., 362.)  In that case it
was held that an elector is not to be deprived of his
vote either by the mistake or fraud of an inspector,
in depositing it in the wrong box, if the intention of
the voter can be ascertained with reasonable certainty. Nor should ballots be rejected. because of
being put in the wrong box by the honest mistake
of the voters themselves. In that case a State and
city election were both held at the same time and
place, under the charge of the same officers, and




HOLDING ELECTIONS, AND OF NOTICE.    99
seven ballots for city officers were found at the closing of the poll in the State box. The circumstances
of the case made it, in the opinion of the Court,
reasonably certain that these ballots were in good
faith put in by electors, and they were accordingly
counted.
~ 134. It sometimes happens that the officers of
election, though acting in good faith commit errors
which will vitiate the election. Thus, if they have
adopted an erroneous rule in regard to the qualifications of voters, by which legal voters were excluded, or illegal voters admitted, in numbers sufficient
to change, or to render doubtful the result, the election is void, unless there is proof upon which the
poll can be purged of illegal votes, and the true
result shown. And in such a case, if the erroneous
rule affects a class of voters, and it has become generally known to the persons who are excluded by it,
they may submit to it, without waiving any rights
although they do not present themselves at the
polls, and offer their ballots. They have the right
to take notice of the decision of the board in other
cases precisely like their own. To require each
voter belonging to a class of excluded voters to go
through the form of presenting his ballot, and having a separate ruling in each case, would be an idle
and useless formality. We are to look at the substance, and not the formality.
~ 135. It must be conceded by all, that time and
place are of the substance of every election, while
many provisions which appertain to the manner of
conducting an election, may be directory only.
(Dickey vs. Hulburl, 5 Cal., 343.)  It does not, how



100    OF THE TIME, PLACE AND MANNER OF
ever, follow that due notice of the time and place of
holding an election, is always essential to its validity.
Whether it is so or not depends upon the question
whether the want of due notice has resulted in depriving any portion of the electors of their rights.
In Indiana it was held, that an election for County
Auditor was not void by reason of an omission to
give public notice that it would take place. (Stale
vs. 7ones, 19 Ind., 356.)  See also Peopl/e vs. Cow/es,
13 AT. Y., 350. People vs. Brenham, 3 Cal., 477.
People vs. Haz'lwell, 12 Mlich., 508.
~ 136. In the case of Foster vs. Scarf,; (15 Ohio,
State R., 532,) it was held, that where notice was notgiven, according to law, of an election to fill a vacancy in the office of probate judge, and where it was
also apparent that the great body of the voters had
in fact no notice, and were not aware that the office
was to be filled, and where a small number cast their
votes for a single candidate, and no votes were cast
for any other, the election was void. But the court.
(Brinkerhoff, 7) says: "In deciding this case, however, we do not intend to go beyond the case before
us as presented by its own peculiar facts. We do
not intend to hold, nor are we of opinion, that the
notice by proclamation, as prescribed by law, is per
se, and in all supposable cases, necessary to the validity of an election; if such were the law, it would
always be in the power of a ministerial officer by
his malfeasance to prevent a legal election. We
have no doubt that where an election is held in other
respects, as prescribed by law, and notice in fact is
brought home to the great body of the electors,
though derived through means other than the proc



HOLDING ELECTIONS, AND OF NOTICE.   101
lamation which the law prescribes, such election
would be valid. But where, as in this case, there
was no notice, either by proclamation or in fact, and
it is obvious that the great body of electors were misled for want of the official proclamation, its absence
becomes such an irregularity as prevents an actual
choice by the electors; prevents an actual election in
the primary sense of that word, and renders invalid
any semblance of an election which may have been
attempted by a few, and which must operate, if it'operate at all, as a surprise and fraud upon the rights
of the many."
~137. It is, of course, more important and essential, that due and regular notice be given of an election to fill a vacancy, than that such notice be given
of the regular election provided by law, for the obvi-ous reason, that there is less probability that the
electors will be informed Of the former without such
notification. Accordingly, we find in the decisions
of the Courts some conflict as to the validity of a:special election to fill a vacancy which is held without the notice provided by law. Inpeople vs. Cowles
(13 AT. Y., 359,) it was held, that in case of the death
-of a judge of the supreme court after it was too late
to give the notice required for filling the vacancy at
-the next ensuing election, it was competent for the
electors to take notice of the vacancy, and to fill it
at that election.
~ 138. This case, however, was decided upon the
ground that the Constitution of New York required
that, in the event of a vacancy in the office of Judge
of the Supreme Court, it should be filled "at the
next general election of Judges   *     *     *




102   OF THE TIME, PLACE. AND MANNER OF
by election for the residue of the unexpired term."
And, under this provision, the majority of the Court
seemed to be of the opinion that all electors were
bound to take notice of a vacancy in that office,
without any formal notice, and that such voters as
did so, had the right to fill such vacancy, although it
occurred but a very short time prior to the election.
Such may be the true construction of the Constitution of New York, but ordinarily, and in most, if
not in all the other States, there must be either formal notice of the vacancy, and of the time of filling
it, or such general notoriety as will amount to notice
to the great body of the electors.
~ 139. In Michigan it was held that the default of
a clerk in publishing notice of an election to make
mention of an existing vacancy, will not invalidate
the election, but the decision was put upon the
ground that there was in fact such publicity as to
amount to notice.  (People vs. Hartwell, 12 Mich.A.508.)  And see State vs. Orris, 20 Wis., 235. S/ate
vs. Goetz, (22 Ibid, 3 6 3.) Stale vs..7ones, 19 Ind., 218.
But in Indiana it has been held that an election to
fill a vacancy, cannot be held where such vacancy
did not occur long enough before the election to enable the proper notice to be given. Beal vs. Ray,
(17 Ind., 554.) And the same point has been repeatedly ruled in California. (People vs. Porter, 6
Cal., 26. People vs. Weller, 11 Ibid, 49. People vs.
Martin, 12 Ibid, 409. People vs. Roseborough, 14
Ibid, 180.)
~ 140. It appears that a statute requiring that the:
polls shall be opened at sunrise, and kept open until
the setting of the sun, is so far directory that before




HOLDING ELECTIONS, AND OF NOTICE.   103
an election can be set aside, because of a deviation
from the statute in this respect, it must be shown
that legal votes were excluded, or illegal votes received in consequence thereof. [People vs. Cook, 8
N. Y. 67.]  Whether the fact of closing the polls
before the hour fixed by statute, or keeping them
open after such hour, will of itself vitiate the election, must depend upon the terms of the statute. A
slight deviation from the direction of the statute in
this respect, will not render void the election, unless
it is fraudulent, and operates to deprive legal voters
of their rights, or unless the statute in express terms,
makes the hour of opening and closing the polls of
the essence of the election.
The better opinion seems to be, however, that a
considerable deviation from the hours fixed by law
for keeping open the' polls, must render the election void. Thus, in Pennsylvania, it has been determined that where the law required the polls to be
kept open until ten o'clock, and they were closed at
eight, the election must be set aside.  (Penn. Dist.
Election, 2 Parsons, 526.) So also if they be opened
at a much later hour than the time prescribed by law,
(Chadwick vs. Mielvin, Brightley's Election Cases, 251.)
And it was at one time held in Ohio that if the polls
were closed for any purpose within the hours fixed by
law for holding the election, it would render it illegal
and void. (State vs. Ritt, 16 Am. Law Reg., 88.) But
this doctrine was overruled in Fry vs. Booth, (19 Ohio
St. Rep. 2 5,) where it was held that the Statute requiring the polls to be kept open between the hours
specified during the entire day, was so far directory
that to close the polls during the dinner hour does
not vitiate the election.




104   OF THE TIME, PLACE AND MANNER OF
~ 141. Where the polls were kept open after the
proper hour for closing, and it appeared that enough
votes had been cast after the legal hour for closing
the polls to have changed the result, the election
was set aside, (Locust Ward Election, 4 Penn. Law
ourvnal, 341.) In Illinois it has been held, under
similar circumstances, that it must be shown affirmatively that votes were received after the proper hour,
which did change the result, (Plall vs. People 29 Ill.,
54.)
~ 142. From all the somewhat conflicting authorities upon the subject, the following may be gathered as the governing rules:
1. If the Statute fixing the hours during which the
polls shall remain open expressly declares that a
failure in this respect shall render the election void,
it must be strictly enforced.
2. But in the absence of such a' provision in the
Statute, it will be regarded as so far directory only,
as that, unless the deviation from the legal hours has
affected the result, it will be disregarded.
3. If the deviation from the legal hours is great,
or even considerable, the presumption will be that it
has affected the result, and the burthen will be upon
him who seeks to uphold the election, to show affirmatively that it has not. But if the deviation from
the legal hours is but slight, the-presumption will be
that it has not affected the result, and the burthen
will be upon him who attacks the validity of the election, to show affirmatively the contrary.
4. If the number of votes illegally cast after the
legal hours, and the persons for whom cast can be
shown, they may be rejected from the count.




HOLDING ELECTIONS, AND OF NOTICE.   105
~ 143. A question of great importance arose in
the Twenty-Eighth Congress, as to the constitutionality of the second section of "an act for the apportionment of Representatives among the several
States, according to the sixth census," approved
June 25th, 1842. That section provided as follows:
"That in each case where a State is entitled to
more than one Representative, the number to which
such State shall be entitled under this apportionment shall be elected by districts comfposed of contiguous territory," &c. The laws in force in many of the
States, prior to the passage of -this act, provided for
the election of Representatives upon a general
ticket, to be voted for by the people of the State at
large, and the States of New  Hampshire, Georgia,
Mississippi and Missouri; refused to change their
system in obedience to the act of Congress, and
elected their Representatives to the Twenty-Eighth
Congress in the old way, by a general ticket. The
question was as to the power of Congress to abrogate a State law, providing for an election of Representative upon a general ticket, and to require the
State to divide its territory into districts, and to
choose Representatives by districts. And the decision of this question depended upon the construction of the fourth section of the first article of the
Constitution of the United States, which is in these
words:
"The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof, but
the Congress may, at any time, by law, make or




106   OF THE TIME, PLACE. AND MANNER OF
alter such regulations, except as to the places of
choosing Senators."
The majority of the committee of Elections held
the second section of the apportionment act, above
quoted, to be unconstitutional and void, and this
view was ably supported in an elaborate report submitted by Hon. Stephen A. Douglass, of Illinois..
(1 Bartlett, 47 to 55.) But the contrary view was.
maintained with scarcely less ability, and in the opinion of the writer of this treatise, with better logic,
by the minority of the committee, whose views were:
presented by Hon. Garrett Davis of Kentucky..
(Ibid, 55 to 69.) The house did not pass upon the
resolutions submitted by the committee, but the
members who had been elected in disregard of the
act of Congress, upon a general ticket, were allowed
to serve out their time. It seems quite clear that
the Constitution confers upon Congress power:
1. To make regulations concerning the time, place
and manner of holding elections for Representatives.
This power can be exercised, and was doubtless intended to be exercised, in the absence of any regulations by the State legislature, but the language
of the Constitution does not permit us to say that
it can only be exercised in the absence of State
regulations.
2. To alter such regulations as may have been
prescribed by the States concerning the true place
and manner of holding such elections. This power
is legitimately exercised when a regulation requiring
representatives to be chosen by the people of a State
at large, is so altered as to require that such representatives be chosen by districts.




HOLDING ELECTIONS, AND OF NOTICE.   1 )7
~ 144. The House of Representatives, however,
in the more recent case of Phelfps and Cavanaugh oMinnesota, (1 Bartlett 148,) followed the ruling of
the majority of the committee in the case last cited,
and held that the election of the members by the
State at large in disregard of the Act of Congress
was valid. The weight of authority, so far as the
action of the House is concerned, is therefore in favor of this view, and yet it is manifest that these rulings have been influenced largely by the consideration that to have decided the other way would have
left States for the time being unrepresented.
~ 145. In the case of Brockenbrough vs. Cabell,
(1 Bartetll, 79,) it was held that where the State law
required votes given for a Representative in Congress to be returned to the Secretary of State within
thirty days from the day of the election, the Statute
was directory only, and that legal votes returned by
the proper officers after that day should be counted.
The substance of this ruling has since been followed
in many cases presenting kindred questions, and the
point is well settled.  (Case of yohn Richards, Cl..
H. 96. Spaulding vs. Mead, C1 e H. 157.)  And
in the case last cited it was distinctly held that, inasmuch as the house is made, by the Constitution, the
exclusive judge of the elections and returns, as well
as of the qualifications of its own members, the returns from the State authorities must be regarded as
priz~ma facie evidence only of what they contain, and
are not conclusive on the house.
And in Mallery vs. Merrill, (Ibid 328,) it was held
that votes fairly given to a party may be counted in
his favor, though they have never been returned to the




108   OF THE TIME, PLACE AND MANNER OF
proper State authorities, the failure to make such return not being chargeable upon such party.
~ 146. A statute of New York provided that it
should not be lawful for,any person "to contribute
money for any purpose intended lo p5romote the election
of any particularperson or ticket, except for defraying the expenses of printing, and the circulation of
votes, hand bills and other papers, previous to any
such election." Under this statute it was held in
7ackson vs. Walker, (5 Hill, 27,) that a contract to
pay the plaintiff $1000, for erecting and keeping
open a building known as a log cabin for the use of
the Whig party during the campaign of 1840, and for
the use and benefit of the candidates of that party,
was void. The court held that it was not necessary
to show fraud, as the statute clearly forbade the contract, by declaring that with two specified exceptions
money intended to promote an election shall not be
contributed.
~ 147. In Hurley vs. Van Wagner, however, (28
Barbour, 109,) it was held, under same statute, that
an action will lie to recover compensation for services rendered to another, under a contract, in putting
up and taking down a tent, used by the employer as
a place for holding public meetings of the friends of
a particular candidate for the presidency, during a
canvass preceding a presidential election. And in
this latter case the Court expressed the opinion that
the ruling in jackson vs. Walker, went too far and
could not be reconciled with the spirit or the letter,of the statute, of which it is an exposition. The
true riule, independent of any statute, doubtless, is,
that all contracts entered into for the purpose of




HOLDING ELECTIONS, AND OF NOTICE.   109
improperly or corruptly influencing the voters at an
election are void, because against public policy.
~ 148. The giving, or offering to give facilities for
the public convenience of the whole county, as an
inducement to remove a county seat, or the offering
of a public advantage to an entire community as an
inducement for the members of such community to
vote for such removal, does not constitute bribery,
and will not avoid an election held to decide the
question of such removal.  (Dishon vs. Smith, 10
Iowa, 212.), 149. It is now well settled that a wager upon
the result of an election is wholly void as being contrary to public policy, and that no action can be
maintained for its recovery. [Loyal vs. Myers, 1
Bailey, 486.] In a few of the older English cases
actions upon wagers were allowed to be maintained.
[Andrewzs vs. Herne, 1 Lev. 33. DeCosta vs. 7ones,
Cozoy!. 729, Lord March vs. Pegot, 5 Burr., 2802.]
In none of these early cases, however, was the question of the immoral tendency of such transactions
raised or considered.' [16 East 158, do 162.] The
more recent decisions in Great Britain, show a great
desire and tendency, on the part of the judges, to
get rid of the rule thus inadvertently adopted by
their predecessors, and they show how much the
more enlightened jurists of a later period, have
been trammeled by it. They have endeavored to
make a distinction between those wagers the subject matter of which is perfectly innocent, and those
in which it is not; and they seek to apply the early
decisions sustaining the validity of a wager to those
cases, where the subject matter is of the former




110   OF THE TIME, PLACE AND, MANNER OF
kind. But they forget that it is the wager itself
which is immoral, and can never be innocent, and
that therefore the subject matter of the bet can
make no difference, in its moral quality.
~ 150. But in this country the decisions are uniform, and all adverse to the validity of any bet or
wager of any kind or character whatever. [Bunn
Zs. Riker, 4 7ohns, 426. Lansing vs. Lansing-, 8 do,
454.  Fischer vs. Yates, 11 do, 28.  Smyth vs. Mc
Masters, 2 P. A. Browne, 182.]  And in Lansing vs.
Lansing, the Court held that if the loser had given
his negotiable note for the amount of the wager the
invalidity of the contract was a good defense against
the indorsee of the note. But in that case the indorser of the note took it with notice, and the question as to the rights of an innocent purchaser of.such paper is not considered. Where the amount
of the wager has been deposited with a third party
as stakeholder, an action will lie against him by the
loser to recover back the amount of the deposit.
[ Vischer vs. Yates, supra.]  And see also 7ohnson
vs. Russell, [37 Cal., 670.] Reynolds vs. McKinney, [4 Kansas, 94.] 7ennings vs. Reynolds, [Ibid.,
101.]
In Illinois it is held that if a negotiable note be
given for an illegal wager, the illegality of the consideration is no defense to a suit by an indorsee for
value.  [Adams vs. Woodbridge, 4 Ill., 255. Sherlty
vs. Howard, 3 Chicago Legal News, 230.  Gregory
vs. King, Ibid., 349.] And there seems to be no
reason to doubt the correctness of these decisions.
~ 151. In case a foreign state is acquired or annexed to the United States, it does not come to us




HOLDING ELECTIONS, AND OF NOTICE.   111
with its political organization intact, but upon the acquisition, it is incumbent upon the United States to
establish a government for such state. Hence, it
was held upon this ground, that the territory of New
Mexico, which had been a duly organized territory
of the Mexican Republic, could not, upon being acquired by the United States, proceed to elect a delegate to Congress in advance of the establishment of
a territorial government therein. [Case of Hug'h
N. Smith, 1 Bartlett, 107.] The same rule would
doubtless apply to any territory of the United States,
and an act of Congress organizing the territory, and
authorizing the inhabitants to choose a delegate, will,
in all cases, be held indispensable to the validity of
an election for delegate in Congress. See also case
of A. W. Babbitt, of Deseret, [1 Bart., 116.] Case,of V. S, Messervy, [ibid. 148].
~ 152. There has been of late years much earnest
discussion in the courts of this country as to what
questions may be submitted to a popular vote. It is
a well settled principle that legislative power cannot
be delegated or transferred from the legislature to
the people at large. Our governments are republican and not democratic. Laws must be enacted by
the representatives of the people, and not by the
people themselves. Nor can any State change this.
Every State must have a "republican form of government,"-this is the requirement of the National
Constitution, and it is complied with only by that
form of State Government which vests the law-making power in the representatives of the people —
[Rice vs. Foster, 4 Harrington (Del.) 479. Brightley's Election Cases 3.  Parker vs. Commonwealth, 6




112    OF THE TIME, PLACE AND MANNER OF
Pa. State R. 507.  Barbo vs. Himrod, 8 N. Y. 483.
Cincinnati, Wilmnington &  Zanesville R. R. Co. vs.
Commissioners, 1 Ohio S/ate R., 84.  Geebrick vs.
State, 5 Iowa, 491.]  See also authorities cited in
note to case of Rice vs. Foster, Brzghtley's Election
Cases, 24.
~ 153. While the correctness of the general rule
above stated is not questioned by any of the authorities, there is a conflict among them as to its application to a species of legislation now becoming very
common in this country.  In several of the States
acts have been passed to confer upon the voters of
cities or municipalities the power to decide, by ballot,
whether the sale of intoxicating liquors shall be
licensed or not. In several of the cases above cited,
acts of this character are held to be unconstitutional
and void. Such is the ruling in Delaware, Pennsylvania and Iowa. In the latter State, however, the
decision is put, partly, upon the ground that all laws
are required, by the Constitution to "have a uniform
operation," and, inasmuch as some towns or cities
might adopt license, and others vote it down, the operation of the law was held not to be uniform. (c) But
on the other hand, there are decisions holding laws
of this character to be valid. Of this class is Hammond vs. Haines, 25 Maryland, 541.  State vs. Noyes
10 Fost. (T. H.) 279. State vs. O'AJeall, 24 Wis. 149.
(c.) The act of the legislature of Iowa held to be unconstitutional,
was peculiar. It was not only a "local option" law, but it declared that
a previous act prohibiting the sale of intoxicating liquors, should not
be i repealed in any county of the State, unless the people of such
county shall by vote" adopt license. So that the act not only authorized
the people of a county to grant license by a popular vote, but also undertook to authorize them to repeal, as to such county, a previous act
which the legislature did not in terms repeal.




HOLDING ELECTIONS, AND OF NOTICE.   113
These cases proceed upon the theory that the legislation referred to, does not vest the law-making power in the people at large, but only confers upon cities or municipalities such powers as may properly be
conferred by legislative act. It is enough to say here,
that in every case the real question is, does the act
in question attempt to confer upon the people at
large, the power to make laws, or the power to say
whether or not an act of the legislature shall have
the force of law? If it does plalnly attempt to do
this, it is null and void. Upon this general subject
the reader is referred to the following authorities, in
addition to thos'e already cited: State vs. Morris, Common Pleas, Am. Law Reg. Vol. 12, page 32, (new series.)  State vs. Parker, 26 Vt., 356. And see, also,
an able discussion of the subject in American Law
Register, vol. 11, page 129, (new series.)
~ 155. We have seen in another connection that
a certificate of election which shows that it is based
upon a partial canvass, is fatally defective, because a
full canvass might show a different result. A similar rule is sometimes applied to the return from a
county which embraces a number of precincts or
voting places.  Thus in. Niblack vs. Walls, 42d Congress, a county return was rejected, because the
county canvassers rejected the vote of three precincts, and counted that of two only. Each party
was required to prove his vote by evidence other
than the return.
~ 1.56. In the same case it was held that a return
which showed one hundred and fifty two votes for
Niblack, and none for Walls, might be impeached
by parol proof that forty-two votes were in fact cast
8




114   OF THE TIME, PLACE AND MANNER OF
and counted out for the latter. And the committee
refused to allow Mr. Niblack the votes shown by
the return, and to Mr. Walls the forty-two votes
shown by evidence aliunde to have been cast for
him. On this point tne committee said:
"It is suggested by counsel that we might allow
the one hundred and fifty-two votes which, according
to this return, were cast for contestant, and also allow the sitting member the forty-two votes which
are shown to have been cast for him and not returned. But the committee hold, that it having been
shown that the return is fraudulent and false, in a
matter so material as the suppression altogether of
the whole of the sitting member's vote, it cannot be
received for any purpose."
~ 157. And in the same case the returns from
Manitee county were objected to, for the following
reason:
"Because the returns made by the county board,
which, by the statute, are required to be duplicates,
are not such. One return states that the board met:and canvassed the votes "on the 29th day of November, 1870," while the other states that the board
met and canvassed the vote "on the 1st day of December, 180," and the former is dated November
29, and the latter. December 1."
But this objection was overruled, the committee
being of the opinion that the difference of one day
between the dates of the two papers was not material.
~ 158. We have stated in another connection the
rule, that where a certificate is by law required to be
made by a board of officers composed of three or




HOLDING ELECTIONS, AND OF NOTICE.   115
more persons, it is sufficient if a majority of such
board join in such certificate. But it was held in
Niblack vs. Walls, supra, that if less than the majority sign, the certificate is not good. Upon this point
the committee say:
"The statute of Florida requires that the returns
shall be signed by the judge of the county court,
the clerk of the circuit court, and one justice of the
peace.
The return from this county, relied upon as proof
of the vote of the county, is signed by but one of
these three officers, the county judge.
The committee are of opinion that where the law
requires the certificate to be made by three officers,
a majority at least must sign, to make the certificate
evidence.
This is not a merely technical rule; it is substantial, because the refusal or failure of a majority of
the board to sign the return raises a presumption
that it is not correct.
It is fa;r to infer that if it had been free from objection, a majority of the board at least would have
signed it.
It is enough, however, to say that the law requires
the certificate of the three officers, and all the authorities agree that at least two must certify or the
certificate is inadmissible."
~ 159. A statute providing that two ballot boxes
be kept at each poll, one for the reception of ballots
for representative in Congress, and the other for the
reception of ballots for state officers, was held to be
directory only, in the case of Boyden vs. Shober, [2




116    OF THE TIME, PLACE AND MANNER OF
Bartlet, 904,] in which case the report of the committee has this language:
"It is said that the law of North Carolina, rightly
construed, required that two ballot boxes should have
been kept at each poll, and that all ballots for members of Congress should have been deposited in one,
and all ballots for electors for President and Vice
President in the other.
"There seems to be some doubt as to the true construction of the statute of North Carolina, but assuming that the construction contended for by contestant is correct, we are of opinion that the statute is
directory only, and that the failure to provide two
ballot boxes, and the deposit of all the ballots in
one box, did not render the election void, in the absence of fraud. If the ballots were freely cast, if
they were honestly and fairly counted, and correctly
returned, we should be unwilling to hold that a mere
mistake of the election officers, as to whether the
ballots should go into one box or two, should be allowed to defeat the will of the majority."
~ 160. In most of the States the law requires that
county returns shall be forwarded to the secretary
of State, by mail. The question has been raised
whether under such a statute a return can be received and counted if sent by private conveyance.
In Niblack vs. Walls, 42d Congress, the return from
one of the counties which should have been sent by
mail, was not only forwarded by private conveyance,
but was addressed to, and received by, one of the
candidates, and by him handed to the secretary of
State. Under these circumstances the house ordered further evidence to be produced to show the




HOLDING ELECTIONS, AN-D OF NOTICE.   117
true state of the poll.  And in Chavis vs. Clever, (2
Bartfell, 469,) it appeared that the statute required
returns to be sent to the secretary of State "by
special messenger."  This provision of the statute
was violated, and the return delivered to one Moore,
an army sutler, and by him sent, by express, to the
Governor of the territory, who delivered it to the
secretary. These facts, together with some evidence,
tending to show that the return was tampered with
on the way, were deemed sufficient to exclude it.
If, however, it be made to appear on the trial of a
contested election/case, that a return which has been
sent in, in an irregular and unlawful way, has not
been tampered with but is in fact the genuine return
without alteration or amendment, duly signed and
certified, it will not be rejected, because of its irregular transmission. It is the policy of the law to discountenance everything which affords an opportunity for evil-disposed persons to tamper with ballot
boxes or returns, and for this reason the sound rule
would probably be to require proof of the genuineness of all such returns as are transmitted through
private, and unauthorized channels.
~ 161. The legislature of a State having once
elected a Senator in Congress, cannot reconsider its
action and elect another person afterwards. The
moment the result is declared and the certificate of
election signed, jurisdiction passes from the State
legislature to the Senate of the United States, which
latter body is to judge of all questions touching the
election returns and qualifications of its members.
On the 19th of January, 1833, Mr. Robbins was
elected a senator from Rhode Island, for the term of




118   OF THE TIME. PLACE AND MANNER OF
six years from March 4, 1834. His credentials were
in due form. In October, 1833, the General Assembly of Rhode Island undertook to set aside this election, and to elect Mr. Potter, Senator, alleging that
the body which had elected Mr. Robbins was not the
legislature of Rhode Island. It was held, after much
debate, that Mr. Robbins held the proper primafacie
evidence of title to the seat, his credentials being in
due form and of prior date to those of Mr. Potter,
and he was accordingly sworn in pending the investigation. Mr. Robbins was ultimately confirmed in
his seat.  Potter vs. Robbins, (Ci.' H., 877.)
Where, however, two bodies, each claiming to be
the legislature of a State, have each chosen a Senator in Congress to represent such State, it is the
duty of the Senate, in deciding between such claimants, to consider and determine which body was, in
fact and in law, the legislature. (Spencer's case, 43d
Congress.)
~ 162. A statute of Virginia in force in 1832, authorized the sheriff, in case the electors were so numerous that all could not be polled before sunsetting, or in case by rain, or the rising of water courses,
many of the electors are hindered from attending,
to adjourn the election "until the next day, and so
from day to day, for three days, Sundays excluded,
giving public notice thereof, by proclamation," &c.
Under this provision it was contended that the polls
might be adjourned from day to day, for three days,
and that the first day is to be excluded in computing
the three days. But it was held otherwise, the committee being of the opinion that the election could
not be kept open for any purpose more than three




HOLDING ELECTIONS, AND OF NOTICE.   119
days. Votes - cast on the fourth day after an adjournment from the third, were accordingly excluded.  [Drapervs. 7ohnslon, Cl. &'., 702.]  It was
also held in the same case that as to the regularity of
the appointment of election officers, it is sufficient
that thev acted under color of authority, and that no
other persons claimed the right.
~ 163. Under a statute requiring that separate
boxes shall be kept for the deposit of ballots for
State officers and for members of Congress, the voter must hand in both his tickets at one and the same
time, and having once voted for State officers, and
been recorded as voting, he cannot afterwards come
forward and claim the right to vote for representative in Congress.  [Draper vs. yohnson, Cl. & H.,
711.]
In the same case, it was held that the presumption
is that the officers of election have taken the oath
required by law, until the contrary is shown. We
have elsewhere endeavored to show that the ruling
in this case, and in some others, that a failure to take
the oath required by law to be taken by officers of
the election, of itself, vitiates the election, is erroneous.
~ 164. The manner of electing United States Senators is, in the absence of congressional action, to be
prescribed in each State by the legislature thereof. A
rule adopted by such a legislature, providing that "a
majority of all the members elect composing the two
houses of the general assembly, shall be necessary
to determine all elections devolving upon that body"
is a legitimate exercise of its power to regulate the
manner of such elections. And under this rule,




120   OF THE TIME, PLACE AND MANNER OF
where there were twenty-nine votes cast in the joint
convention for David L. Yulee, and twenty-nine
blank, it was held that there was no election. [Yulee
vs. MPfallory, 1 Bartlett, 608.]
~ 165. Under that clause of the constitution providing that senators may be "chosen by the legislature" of each State, an election of senator, to be
valid, must be participated in by both houses of the
legislature in their organized capacity. It is not
enough that a majority of the members of each
should participate. [Case of Harlan, 1 Bartlett,'621.
Case of Bright and Fitch, do. 629.]
~ 166. In accordance with the rule, that the errors
of a returning officer shall not prejudice the rights
of innocent parties, it has been held that where it
was the duty of the presiding officer to return the
votes, sealed nJ, a return of them, unsealed, in the
absence of any proof or suspicion of fraud is good.
Also, that where the statute prescribes the form of
a certificate of the votes given to be executed by
an officer of the election, it is sufficient if the certificate is substantially according to such form, and a
literal following of the form is not required. Also,
that if the presiding officer, by mistake, insert the
wrong name in his return of persons voted for, the
error may be corrected.  (Mallory vs. Merrill, Cl.
e H., 329.) And in same case it was held that
votes fairly given and not returned at all, may be
proven and allowed.  And see also Colden vs.
Sharpe, (C.' & H., 369.)
~ 167. The same principle was recognized and
enforced by the house of Representatives of the
United States in Root vs. Adams, (CG. e H., 271,)




HOLDING ELECTIONS, AND OF NOTICE.   121
where it was held that the error of a clerk in incorrectly spelling the name of one of the candidates in
making the return of the election, should be corrected by the house as soon as ascertained. And
when, by such correction, it was made apparent that
the contestant had a majority of the legal votes, he
was admitted to the seat.
~ 168. And in Guyon vs. Sage, (Ci. & H., 348)
the house corrected a mistake in the inspectors, return, by which the word "junior" was omitted when
it ought to have been inserted.  There are, of
course, two kinds of errors and mistakes, which may
occur in making up the returns of an election, viz;
such as may be corrected from what appears upon
the face of the record, without a resort to extrinsic
evidence, and such as cannot be so amended. In
the case of a mistake of the former kind, it may be
corrected by the court or tribunal trying the contest,
as soon as discovered; but if a mistake occur which
cannot be corrected by the record,-that is to sayone which is not apparent upon the face of the
record, evidence aliunde is admissible, and should
always be resorted to to correct it, and to establish
the very truth of the matter.
~ 169. In the case of Sundry Citizens vs. John
Sargeant, (CI. &' H., 516,) it appeared that at the
election in the second congressional district of Pennsylvania, in October, 1826, John Sargeant and Henry
Horn had the highest and an equal number of votes.
The Governor of Pennsylvania seems to have considered the result as leaving the office vacant, but
did not issue writs for a new election until Messrs.
Sargeant and Horn had each informed him in writ



122   OF THE TIME, PLACE AND MANNER OF
ing that they released all claim to the seat. Thereupon a new election was ordered, and at that election Mr. Sargeant was duly chosen. Subsequently
certain citizens petitioned the house to give the seat
to Mr. Horn, on the ground that he was in fact chosen at the first election. But it was held that he had
waived his claims, and voluntarily relinquished his
rights, whatever they may have been, under the first
election. (d.)
~ 170. The case of Reed vs. Corden, (Ci. e&  H.,
353,) presented the important question whether a
State has the constitutional power to provide, that
in case of a tie between two candidates for Representative in Congress, the question which of the two
shall be the Representative, may be determined by
lot. It -was held that the statute of Maryland, authorizing the Governor and Council, in such a case,,
to proceed to decide by lot, which of the two shall
receive the certificate, and be entitled to the seat,,
was unwarranted by the constitution, and that the
record of such a decision was not admissible in evidence. This decision was put upon two grounds,
1. That the house of Representative is composed
of members chosen every second year, by the peopie of the United States, and that the law of Maryland in effect gave the choice to the Governor and
Council of that State, in case of a tie, and
2. That the house being by the Constitution "the
judge of the election returns, and qualifications of
its own members," it can never sanction the doctrine
(d.) But it is very doubtful whether the relinquishment of claim to
the seat here referred to should have been regarded as either legal or
binding. The constituency were chiefly interested, and they were not
consulted.




HOLDING ELECTIONS, AND OF NOTICE.   1 23
that any State can confer upon any officer or tribunal, power to decide a question of this kind. The.
committee seemed to be of opinion that in case of
a tie, there is no election by the people, and no certificate of election should be given by the State authorities to any one, and this is doubtless the correct
rule. The Representative must be chosen by the
people. If an equal number of votes are given to,
each candidate, there is no choice, and the only remnedy is in a new election.
~ 171. The failure or refusal of the proper officer
to issue a certificate of election to a person duly
elected to an office, cannot operate to deprive such
person of his rights. The certificate or commission
is the best, but not the only evidence of an election,,
and if that be refused, secondary evidence is admissible.  (Richard's case, Ci.. H, 95.)  Where,,
therefore, the Governor of Tennessee claiming that
the State had seceded from the Union, refused to
certify the result of an election for Representatives
in the Congress of the United States, it was held
that other proof of such election was admissible,
and that the house being satisfied from such proof'
that claimant was elected, he should be admitted..
(Clement's Case, 1 Bartlett, 266.)
~ 172. When the people of an organized territory
have been empowered by Congress to form a Constitution preparatory to admission into the Union,
they may, in anticipation of such admission, elect representatives in Congress, who, in the event of the
admission of such territory as a State, will be entitled to their seats. The act of admission relates,
back to, and legalizes every act of the territorial au-.




124   OF THE TIME, PLACE AND MANNER OF
thorities exercised in pursuance of the enabling act.
(Case of Phelps and Cavanaugh of Mlinnesota, 1 Bartlett, 248.) But if the territory is not organized at
the time of the holding of an election for delegate,
the same is void. (Case of 7. S. Casement, 2 Bartlet! 516.)
~ 173. Whether, when a State government is
formed of a part of an organized territory, the remainder of such territory continues to enjoy the benefits of the original territorial organization,, and
among them the right to be represented in Congress
by a delegate, seems to be an unsettled question. In
Fuller vs. Kingsbury, (1 Bartlett 251,) the house held
against the report of the majority of the committee,
that upon the admission of the State of Minnesota,
the territory of Minnesota ceased to be, and that so
much of the territory as lay outside the limits of the
State, was left without-ny legally organized government, and that the people thereof were not entitled
to elect a delegate in Congress until that right was
conferred upon them by Statute. And this ruling
would seem to accord with reason, and yet it appears
that the opposite rule was adopted in the case of
Paul Fearing of Ohio Territory in 1802, and in the
case of Henry H. Sibley of Wisconsin Territory in
1848. (See report of majority of committee in Fuller vs. Kingsbury, 2 Bartlett, 253.)  There may be a
distinction between a case where the territory is very
large and a State is formed out of it, leaving yet a
large territory and considerable population within
the original territorial limits, and one where the State
when formed embraces the principal part of the territory and its population, and this may explain the
apparent conflict.




HOLDING ELECTIONS, AND OF NOTICE.   125
~ 174, In Chrisman vs. Anderson, (1 Bartlett, 328,)
it was held to be the duty of the house of Representatives in the investigation of an election contest to
go behind all certificates for the purpose of correcting mistakes brought to its notice. In the same case
however it was held that a return not signed or certified by any of the officers of the election, was not
admissible, and the same point was held in Barnes
vs. Adams. (2 Bartlett. 760.) It is the duty of the
party seeking to avail himself of a vote which is not
legally certified or returned, to make the necessary
proof to supply the place of the usual formal certificate and return, and if he fails to do so, such vote
cannot of course be received.
~ 175. Where the Statute directed the returns of
an election for representatives in Congress to be
filed with the County Judge, and an abstract forwarded to the Secretary of State, and the County
officers mistaking their duty forwarded the original
returns to the Secretary of State, it was held that
this did not vitiate the election, or furnish proper
ground for throwing out the vote of the entire county. In the absence of fraud, an irregularity of this
character, not affecting the result in any way, cannot
be regarded as sufficient cause for rejecting the vote
of a county, or even of a voting precinct.  (Bennett
vs. Chapman, 1 Bartlett, 204,) and see also Clark vs.
Hall, (Ibid. 215.)  The Statute in question clearly
belonged to that class of statutory provisions concerning the conduct of elections, which are directory
merely.
~ 176. It was held by the House of Representatives of the United States, after a long and able dis



126    OF THE TIME, PLACE AND MANNER OF,cussion, that where the legislature of a State has
failed to provide the time, place and manner of holding an election to fill a vacancy occurring in the
house; that the Governor of such State, upon being
informed of the vacancy, may issue a writ of election, and therein fix the time and places of holding
such election.  [Case of 7ohn Hoge, of Penn. C1. 2e
H., 135.] The power given to the Governor, by the
second section of the first article of the Constitution,
to issue writs of election to fill vacancies, carries
with it the power to fix the times and places of holding such election in cases where such times and pla*ces are not fixed by law.
It is of course desirable and indeed necessary, that
proclamation be made of such election, or that it appear that it was generally known for a reasonable
length of time, though in the case just referred to it
was held, that a very short notice (only two or three
days) was sufficient, when it appeared that the election
was fixed for the same day as the election for President and Vice President of the United States, and
where it was evident that the great mass of the electors were in fact apprised of it, and participated in it.
~ 177. If a case should arise where no authority,,either State or federal, has fixed either the time or
place of electing a Representative in Congress, no
election could be legally held. And yet, if, in. such
an event, the electors, by common consent should
come together and choose a Representative, the
house might validate their action, and admit their
chosen Representative. Such action wou-ld be within the power, and therefore, within the discretion of
the house.




HOLDING ELECTIONS, AND OF NOTICE.   127
~ 178. But whether a military Governor may, un&der any circumstances, order or fix the time of an
election for Representatives in Congress, has been
much discussed. The better opinion seems to be
that if the government of a State has been disorganized by insurrection and rebellion, or otherwise,
so that there are no State officials, and can be none
until an election occurs, the United States may take
military control of the territory of such State, and
appoint a military Governor, who may perform
such acts as may be required of the executive of
such State, as a prerequisite to the holding of an election. The reason for this doctrine was thus stated
by the report of the committee of elections in the
Louisiana case, in the 37th Congress, (1 Bartlett,
446,) and again repeated in case of M. FI Bonzano,
(2 Bartlett, 1,) as follows:
"Representation is one of the very essentials of a
republican form of government, and no one doubts
that the United States cannot fulfill this obligation
without guaranteeing that representation here. It
was in fulfillment of this obligation that the army
of the Union entered New Orleans, drove out the
rebel usurpation, and restored to the discharge of
its appropriate functions, the civil authority there.
Its work is not ended till there is representation
here. It cannot secure that representation through
the aid of a rebel Governor. Hence the necessity
for a military Governor to discharge such functions,
both military and civil, which necessity imposes in
the interim between the absolute reign of rebellion
and the complete restoration of law.  Suppose
Governor Moore to be the only traitor in Louisiana;




128   OF THE TIME, PLACE AND MANNER OF
one of two things must take place: the people must
remain unrepresented, or some one must assume to
fix a time to hold these elections. Which alternative approaches nearest to republicanism, nearest to
the fulfillment of our obligations to guarantee a republican form of government to that people —closing the door of representation, or recognizing as
valid the time fixed by the military Governor? Are
this people to wait for representation here till their
rebel Governor returns to his loyalty and appoints a
day for an election, or is the government to guarantee that representation as best it may? The committee cannot distinguish between this act of the
military Governor, and the many civil functions he
is performing every day, acquiesced in by everybody.
To pronounce this illegal, and refuse to recognize
it, is to pronounce his whole administration void and
a usurpation.  But necessity put him there and
keeps him there."
~ 179. In the case of Jared Perkins of New
Hampshire, (1 Bar/letl, 142,) the following facts appeared: On the second day of July, 1846, the State
of New Hampshire was divided by an act of her legislature into four Congressional districts, and in
March, 1849, a representative in Congress was chosen from each of said districts, and the gentlemen so
chosen took their seats as members of the 31st Congress. In July, 1850, by another act of the legislature,
said State was re-districted, and the boundaries of
the several districts changed. In September, 1850,
Hon. James Wilson, who was the representative
from the old third district, resigned. A vacancy having been thus created, the Governor ordered an elec



HOLDING ELECTIONS, AND OF NOTICE.   129
tion to be held by the new third district to fill it. At
this election Mr. Perkins was chosen. There was a
majority report from the committee of Elections in
his favor, and after debate in the house he was admitted to the seat by the very close vote of 98 to 90.
There are grave reasons for questioning the soundness of this decision. Let us suppose, for example,
that after an election by a district, it is divided into
two equal parts, and one-half placed in one new district and the other half in another. If under these
circumstances a vacancy occurs, by which of the new
districts shall it be filled? Or we may suppose that
the territory composing a district may be distributed
among three, four, or half-a-dozen new ones. In
such cases there is no sound principle upon which to
determine which, if any, of the new districts shall fill
a vacancy which may occur from the old. The true
rule, therefore, must be that a district once created,
and having elected a representative in Congress,
should be allowed to continue intact for the purpose:
of filling any vacancy which may occur, until the end
of the Congress in which it is represented. And if
a State legislature shall abolish such district after it
has elected its representative, and shall make no provision for filling a vacancy, it may, in the event of a
vacancy, be obliged to go unrepresented for the time
being.
~ 180. The case of Jared Perkins, supra, was expressly overruled in the more recent case of Hunt
vs. Menard, (2 Bartlett, 477.)  In this latter case
the committee said:
" The act of the legislature of Louisiana of August
22, 1868, making a new division of the State into its
9




130   OF THE TIME, PLACE AND MANNER OF
five congressional districts, by its terms, purports to
repeal all laws' and parts of laws in conflict with said
act, but is silent on the subject of vacancies that
might occur in the districts as then existing.
"The language of the minority report in the case
of Perkins on the New Hampshire statute, is appropriate on this point as well as on this case generally,
and we quote from it as follows:
"It does not purport to provide for any method of
filling vacancies that might occur in the future, and,
beyond all question, it was understood as providing
only for the election of members of future Congresses. Such are the terms of the act, and such must
also be its spirit. A vacancy in the house of Representatives is the occurrence of an event by which a
portion of the people are left unrepresented, and the
filling of that vacancy is directed by the Constitution
in such explicit language as requires no aid from.State enactments to perfect the right. The second
section of the first article in the Constitution contains
the following provision: "When vacancies occur in
the representation from any State, the executive authority thereof shall issue writs of election to fill such
vacancies." This is the only provision of law on the
subject of vacancies, and it is ample and sufficient.
No act of the legislature of New Hampshire purports to interfere in the matter, and the act of July
ought not, in our belief, to be understood as requiring the vacancy occasioned by General Wilson's resignation to be filled by any other people than those
whose representative he was. Had such been the
purpose of the act, we believe it was incompetent
for the law-making power of that State to accom



HOLDING ELECTIONS, AND OF NOTICE.   131
plish the object while this House hold the right to
judge of the election of its members.
"It would not be preservation of the purity of the'elective franchise, nor would it be a just guardianship of the republican principle that all shall have a
right to be represented, to admit the power of a
State legislature to provide that a portion of the
people should have two representatives in Congress,
while another portion should have none, or not be
represented by the man of their choice.    *  *
It is, besides, in disregard of the law of Congress of
June, 1842, which declares that no one district shall
be entitled to two representatives. If the people
who choose a representative are not entitled to fill
the vacancy happening by his resignation, it is impossible to tell what portion of the population may
most properly exercise this privilege. It seems to
be assumed in this case that the new district made
by the act of July 11, 1850, and numbered three, has
the right to send a representative in place of General Wilson because the number corresponds with
that which General Wilson represented, But the
order of numbering is an unimportant circumstance,
and the first or the fourth district might have been
as properly called the third as any other; yet it would
be a strange assertion that, on this account, such district would be authorized to have two representatives
during the remainder of the thirty-first Congress."
"This reasoning, which your committee consider
as sound and pertinent, applied to the case under
consideration seems to be conclusive against this
election; and it may also be added that whatever
power a State legislature may have in the matter, it




132   OF THE TIME, PLACE AND MANNER OF
is absurd to say that a district when once established
and a representative chosen therein, is not to continue for the whole Congress, for which the election
has once been operative. No election to fill the vacancy caused by the death of Mr. Mann, appears to
have been notified or held in the whole of said district as represented by him."
~ 181. A statute of Kentucky required all votes
to be given in the presence of the high sheriff of the
county or his deputy. In Letcher vs. Moore, ( C. e
H., 843,) it appeared that at one of the polls both
the high sheriff and his deputy were absent for several hours. The sheriff had been called away by
sickness in his family, and after he left, and before
the arrival of his deputy, a number of votes were
cast by legal voters. The only objection to these
votes was that they were not given in the presence
of the sheriff or his deputy. A majority of the
committee reported in favor of rejecting these votes,
but the House, upon principles perfectly sound, reversed this decision, and ordered the votes to be
counted. The House in the same case overruled
the decision of the committee rejecting certain
votes otherwise legal, for the reason that they were
cast while one of the judges of the election was not
present, and while one Moses Grant was acting under an illegal appointment by the sheriff.
~ 182. In Marshall vs. Kews, (2 Swan, 68,) it appeared that two men were candidates for the office
of Circuit Court Clerk, that the majority for one of
them as shown by the returns, was three votes only;
and that at one precinct some twenty voters were
deprived of their right to vote, by a failure to open




HOLDING ELECTIONS, AND OF NOTICE.   133
the polls.  Under this state of facts the election
was declared void, because it was impossible to know
whether the successful candidate would have been
elected upon a full expression of choice by all who
desired and were entitled to vote.
But in a subsequent case in the same State (1
Sneed, 693,) it was held that an election should not
be set aside upon a showing that in " one precinct
no election whatever was opened and held," without
a further showing that the result of the election was
affected thereby.
~ 183. Where a statute requires a question to be
decided, or an officer to be chosen, by the votes of
"a majority of the voters of a county," this does not
require that a majority of all persons in the county
entitled to vote shall actually vote affirmatively, but
only that the result shall be decided by the majority
of the votes cast, provided always that there is a
fair election, and an equal opportunity for all to participate. In such a case the only proper test of the
number of persons entitled to vote is the result of
the election as determined by the ballot box, and
the Courts will not go outside of that to inquire
whether there were other persons entitled to vote
who did not do so. The "voters of the county" referred to by all such statutes are necessarily the voters who vote at the election, since the result in each
case must be determined by a count of the ballots
cast, and not by an inquiry as to the number not
cast. This doctrine is well settled by the authorities.
(People vs. Warfield, 20 Illinois, 163.  People vs.
Gamer, 47 Ill., 246. People vs. Wiant, 48 Ill., 263.
Railroad Co. vs. Davidson Co., 1 Sneed 692. Augell




134   OF THE TIME, PLACE AND MANNER OF
&r Ames on Corp., 9th Ed., Secs. 499-500. Bridgeport vs. Railroad, 15 Conn., 475. Talbot vs. Dent., 9
B. Monroe, 526. State vs. The Mayor, 37 Mo., 272..
St. 7oseph Township vs. Rogers, 16 Wallace, 644.)
~ 184. Where the managers of an election are
clearly shown to have committed a fraud in the conduct of the election, or the counting or returning of
the votes, and where the effect of the fraud discovered, does not affect or change the result, it is a
grave question whether the result should not be the
rejection of the return in toto. In _7udkins vs. Hill,
[50 NiV.., 140,] it appeared that there were declared as cast at one of the precincts, twenty seven
more votes for county Commissioner than were
marked on the check list. The Court said "if from
the fact of this discrepancy, the Court ought to find
that it was the result of fraud in the managers of
the election, the Court would hesitate long to count
any of the votes cast at an election so tainted, on
the ground that with such proof of fraudulent, and
corrupt purposes, no confidence could be entertained
in coming to any reliable conclusion, as to what
votes were actually given." And the safe rule probably is that where an election board are found to
have wilfully and deliberately committed a fraud,
even though it affect a number of votes too small to
change the result, it is sufficient to destroy all confidence in their official acts, and to put the party
claiming anything under the election conducted by
them, to the proof of his votes, by evidence, other
than the return.
~ 185. It was, however, decided in the case last
cited, that no inference of fraud can fairly be drawn




HOLDING ELECTIONS, AND OF NOTICE.   135
from the single fact that the votes declared, exceeded by twenty-seven, the number of persons marked
on the check list as having voted. This discrepancy,
the Court say, might have resulted from a failure to
check all the names of persons voting; or from
double voting without the knowledge of the board;
or from a mistake in counting, and in either case the
board may have acted in good faith. The presumption is that an election is honestly conducted, and
the burthen of proof to show it otherwise, is on the
party assailing the return. What we mean here to
assert, is only this, that where a return is clearly
shown to be wilfully and corruptly false, in any material part, the whole of it becomes worthless as
proof. For if false and corrupt in one part, it may
be in others, and all faith in its reliability is destroyed.
In such a case, however, it must not be assumed that
the election is necessarily void. If satisfactory proof
of the actual vote can be made, and the result thus
ascertained, the election may stand, although the re'turn falls to the ground.
~ 186. A statute providing for a special election
to be called on ten days notice, will be construed as
not coming within the provisions of a previously enacted registry law, for the reason that it would be
impossible to make the registry, give the statutory
notice, and revise the lists within ten days. Such
at least, was the ruling in Illinois in the case of People vs. Ohio Grove, [51 lii., 191,] and it is probable
that under the provisions of none of the registry
acts in this country, could a registration be legally
perfected within so short a period.  Of course,
where a registry act is by its terms to be applied to




136   OF THE TIME. PLACE AND MANNER OF
all elections by the people, it must be applied to an
election subsequently authorized, unless the act authorizing such subsequent election contains provisions which make it impracticable so to apply it, in
which case the subsequent act must stand and be
held as modifying the registration act.
~ 187. It sometimes happens that a statute is
passed providing that a particular officer named
shall be chosen each year, "at the general election,"
without further provision as to the time. In most,
and it is presumed in all the States, the time for
holding the general election, is fixed by a constitutional provision, and there can be no room for doubt
but that a statute fixing the election of an officer
"at the general election," should be construed to
mean on whatever day the proper authority may fix
as the day for that election. And hence, if, after
the passage of such an act, the time for holding the
general election is changed, the time for holding the
election of the particular officer named would be
changed with it. The purpose of selecting the day
of the general election in such cases, is not to select
a particular day of the month or year, but to provide for the convenience of the people, by holding
one, instead of several elections. See West Virginia
Cases, 43d Congress.
~ 188. A different rule prevails, however, where
a statute provides that an election shall occur on a
given day of the month, every year, or in given
years, even though the day is also described as the
day of the general election. Thus, for example, a
statute of Illinois provided that certain commissioners should be elected "at the next general election,




HOLDING ELECTIONS, AND OF NOTICE.   137
on the first Monday in August, 1874, and every
year thereafter," and it was held that the change of
the time for holding the general election did not
change the time for the annual election of said commissioners. In the former case the statute should
be construed as fixing the day of the general election, and not a particular day of the month, but in
the latter the particular day of the month and week
in each year being specified, it must be presumed
that the term "general election" was used as descriptive of the election, the time of holding which
was fixed " on the first Monday in August " in each
year. [People vs. Sloan, 14 Ill., 476.]
~ 189. A statute of Michigan authorized the election of two commissioners, but the election was conducted in all respects as if but one was to be chosen.
Two persons were opposing candidates, and each
voter voted for one of the two, but in no instance
did a ballot contain more than one name for the
office. Evidently the electors acted under the belief
that only one commissioner was to be elected. It
was held that only the one receiving the highest
number of votes was elected, and that as to the oth.er, there was a failure to elect, and the office remained vacant [People vs. Canvassers, 11 Mich. 111.1
~ 190. An election will not be held void and set
aside, on the ground that the mere police regulations of the election law, under which it was held
were unconstitutional. The citizens possess the
prerogative of voting, and the legislature cannot
take that right away by encompassing an election
law with unconstitutional provisions. If the voters
think proper to go forward and vote under a defec



138   OF THE TIME, PLACE AND MANNER OF
tive law, those who were candidates ought to be the
last to complain when the result has been affected
by neither the unconstitutionality of the law, fraud,
error nor collusion. [Andrews vs. Lancier, 13 La.
An., 301.] But, of course, where, by reason of the:
enforcement of unconstitutional and void regulations, even of a police character, the result is affected, the rule is different, and in such a case, the election cannot stand.
~ 191. The right to vote for, and be represented
by county and state officers, being a constitutional.
right, it cannot be impaired or taken away by legislation. Hence, it has been held upon constitutional
ground, that if an act for the organization of a new
county was so framed that the inhabitants of such
new county could not participate in the election of
Judges and State Senators, the same was unconstitutional and void. And the fact that a future legislature was expected. to remedy this difficulty by incorporating such new county in a senatorial and judicial district, does not cure the defect in such an
act.  [Lenning vs. Carpenter, 20 N. Y., 447. People vs. Maynard, 15 Mich., 471.  Cooley's Const.
Limitations, 616.]
~ 192. The principles of public policy, which forbid and make void, all contracts tending to the corrupting of elections held under authority of law,
apply equally to what are called primary or nominating elections, or conventions, although these are
mere voluntary proceedings of the voters of certain
political parties. It is quite as much against public
policy, to permit contracts to be made for the purpose of corrupting a convention or primary election,.




HOLDING ELECTIONS, AND OF NOTICE.   139~
as to permit the same thing to be done to corrupt
voters at a regular election. The buying and selling of.votes, or of influence at a nominating convention or election, is quite as injurious to the public, and quite as abhorrent to the law, as the same
corrupt practices when employed to influence an
election provided for by statute. The too common
practice of providing liquors to be used to influence
voters in a convention, primary election, or regular
legal election, is a practice which the law will not
tolerate. A contract made for such a purpose is utterly void.  [Strasberger vs. Burk, 13 Am. Law Reg.
(N. S.) 607.'Nichols vs. Mudgett, 22 Vt., 546. Duke
vs. Ashbee, 11 Iredell, 112. And upon the general
question of the invalidity of contracts made in violation of the established policy of the law, see Spaulding vs. Preston, (21st Vermont Reports, 9.)
~ 193. In Nichols vs. Mudgett, supra, the following
were the facts: The defendant being opposed to
plaintiff, who was a candidate for town representative,
the parties agreed that the former should use his influence for the plaintiff's election, and do what he:
could for that purpose, and that, if the plaintiff was
elected, that should be a satisfaction of his claim.
Nothing was specifically said about the defendants
voting for the plaintiff, but he did vote for him, and
would not have done so, nor favored his election,
but for this agreement. The plaintiff was elected.
Held, that the agreement was void, and constituted
no bar to a recovery upon the demand. And in
Meachem vs. Dowze, 32 Vt., 721, it was held, that a
note given in consideration of the payee's agreement to resign a public office in favor of the ma



140   OF THE TIME, PLACE AND MANNER OF
ker, and to use influence in favor of the latter's
appointment as his successor, was void, in the hands
of the payee. An agreement between two voters
to "pair off" and both abstain from voting is void,
and the officers of the election cannot refuse to receive the vote of one of the two, on account of such
an agreement.
~ 194. The chief reason for the general adoption
of the ballot in this country is, that it affords the voter the means of preserving the secrecy of his vote.
And this enables him to vote independently and
freely, without being subject to be overawed, intimidated, or in any manner controlled by others, or to
any ill will or persecution, on account of his vote.
The secret ballot is justly regarded as an important
and valuable safeguard for the protection of the
voter, and particularly the humble citizen against
the influence which wealth and station may be supposed to exercise. And it is for this reason that the
privacy is held not to be limited to the moment of
depositing the ballot, but is sacredly guarded by the
law for all time unless the voter himself shall vol:
untarily divulge it.  (People vs. Pease, 27 N. Y., 81.)
~ 195. All devices by which the secrecy of the
ballot is destroyed by means of colored paper used
for ballots, or by other similar means, are exceedingly reprehensible, and whether expressly prohibited by statute or not, should be discountenanced by
all good citizens. Judge Cooley, in his admirable
work on Constitutional Limitations, expresses the
opinion that in as much as the voter himself cannot
be compelled to disclose for whom he voted, it is but
reasonable to conclude that "others who may acci



HOLDING ELECTIONS, AND OF NOTICE.   141
dentily, or by trick or artifice, have acquired knowledge on the subject, should not be allowed to testify
to such knowledge, or to give any information in the
courts upon the subject. "Public policy," he declares,
"requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it. His ballot is absolutely privileged,
and to allow evidence of its contents, when he has
not waived the privilege, is to encourage trickery and
fraud, and would in effect establish this remarkable
anomaly, that while the law, from motives of public
policy, establishes the secret ballot with a view to
conceal the electors action, it at the same time encourages a system of espionage, by means of which
the veil of secrecy may be penetrated, and the voters
action disclosed to the public."  (p. 506 and 507.)
~ 196. The case of People vs. Cicote, (16 ~Mich.,
283,) is cited to sustain the views just expressed.
At the same time the author concedes that in lgislative bodies it has been held that when a voter refuses
to disclose for whom he voted, evidence is admissible
of the general reputation of the political character
of the voter, and as to the party to which he belonged at the time of the election, but the hope is expressed that this rule of evidence will not be adopted
by the courts. In practice it will be found that it can
in general only be important to prove the contents
of a ballot deposited in the box by a person claiming the right to vote, for one or the other of the foilowing purposes.
1. When it is alleged that the person casting such
ballot was not a legal voter, and for the pupose of
excluding it.




142   OF THE TIME, PLACE AND MANNER OF
2. When it is deemed important to show how
many good votes were cast for a particular candidate
at a given poll, for the purpose of impeaching the
return and showing that such candidate has not been
allowed all the votes cast for him.
When the object is to exclude the ballot as cast
by a person not qualified to vote, as we have elsewhere seen, it is necessary to showfirst that the ballot was illegal. This being done, the person who
cast it may be compelled to answer as to its contents, or if he cannot be found or fails to remember
the contents of such illegal ballot may be shown by
circumstances. If the object is to show how many
good votes a particular candidate has received, for
the purpose of impeaching the return, it is to be presumed that the voters who cast such votes will as a
general rule not object to giving testimony, because
the evidence is sought as a means of protecting their
rights and defeating an alleged fraud by reason of
which their votes have not been honestly counted
and returned. But if any voter under these circumstances should refuse to waive his privilege and testify as to the contents of his ballot, and should object
to his secret being divulged by any other witness,
his refusal and objection must prevail, unless he has
himself at the time of voting, voluntarily made public his ballot, and its contents, in which case such contents may be proven by the testimony of those persons to whom they were voluntarily communicated.
~ 197. In the absence of any statutory provision
expressly requiring more, a plurality of the votes
cast will elect. It is only in cases where the statute
so provides, that a majority of all the votes cast, is




HOLDING ELECTIONS, AND OF NOTICE.    143
-necessary to the choice of an officer. In this country where candidates may be numerous, and the
votes of the electors divided among a number of
different persons, to require a majority to elect,
would be to prevent a choice in very many cases;
-hence it is that a majority is seldom required in a
popular election.  (Augustin vs. Eggfeston, 12 La.,
An. 366.  Cooley's Const. Lim., 619-620.)  In those
States, where a majority is required to elect, (and
such is the requirement in Vermont, and perhaps in
a few other States,) provision is made by statute for
a second election, in case there is no choice at the
first.
~ 198. A statute of Pennsylvania provides that
upon the petition of at least five citizens of the county, stating under oath, that frauds are apprehended
in any election district of such county, the Court of
Common Pleas may appoint two judicious, sober,
-and intelligent citizens of the county to act as overseers of said election; said overseers to have the
right to be present with the officers of the election,
during the whole time the same is held, the votes
counted and the returns made out, and signed by
the election officers. They are to keep a list of voters if they see proper, to challenge voters, and
generally to aid in preventing or detecting frauds.
The statute further provides, that if the officers of
the election "shall refuse to permit said overseers to
be present and perform their duties as aforesaid, or
if they shall be driven away from the polls by violence or intimidation, all the votes polled at such
election district may be rejected by any tribunal trying a contest under said election." In re Duffy,




144   OF THE TIME, PLACE AND MANNER OF
(4 Brewster, 531,) it was held that where overseers
duly appointed under this statute, were not permitted to serve, but were driven away by threats and
intimidation, there is necessarily such a violent presumption of fraud, that in the absence of a perfect
showing of legality, fairness, and regularity, the
whole poll should be invalidated. "In the absence
of any improper conduct on the part of overseers
appointed by the Court in conformity with plain
statutory requirement," says the Court in that case,
"we can hardly conceive of an excuse for not permitting them to serve, or for driving them away,
which ought to find favor or apology."
~ 199. In the case of Duffy, supra, the Court laid
down the rule that incompetency, inefficiency, and a
reckless disregard of essential requirements of the
law, on the part of officers conducting an election,
to such an extent as that, their acts become unreliable, must of necessity work the same result as actual fraud. No doubt this is so, for it may be regarded as a fundamental principle of the law of elections, that whatever renders the returns or certificates of election officers unreliable, or which, in other words, destroys their value as evidence, is sufficient to set them aside, and to make it necessary to
prove the fairness and legality of the election by
other evidence.  Speaking of this rule, however,
the Court, in the case just cited, well says: "While.
this is the only safe and true doctrine, still, a construction might be given to the statutes relating to
elections so strict as to foster and encourage fraud,
rather than to crush it and stamp it out."
~ 200.'It is often a perplexing question whether




HOLDING ELECTIONS, AND OF NOTICE.   145
a statutory provision concerning the manner of conducting elections is mandatory or only directory.
We have already stated pretty fully the general rules
upon this subject and cited numerous authorities.
These statutes are numerous and various in this
country and it would be an endless task to point
them all out and discuss the effect of each. The
rule of construction to be gathered from all the authorities was thus stated'in 7ones vs. The State, (1
Kansas 279,) and approved in Gilleland vs. Schuyler,
(9 do 569,) "unless a fair consideration of the statute
shows that the legislature intended compliance with
the provisions in relation to the manner to be essential to the validity of the proceedings, it is to be regarded as directory merely." And in the latter case
the court said, "Questions affecting the purity of
elections are in this country of vital importance.
Upon them hangs the experiment of self government. The problem is to secure, first, to the voter
a free untrammelled vote: and secondly a correct
record and return of the vote. It is mainly with
reference to these two results that the rules for conducting elections are prescribed by the legislative
power. But these rules are only means. The end
is the freedom and purity of the election. To hold
these rules all mandatory and essential to a valid
election is to subordinate substance to form, the
end to the means. Yet on the other hand, to permit a total neglect of all the requirements of the
statute, and still sustain the proceedings, is to forego
the lessons of experience and invite a disregard of
all those provisions which the wisdom of years have
found conducive to the purity of the ballot box.
10




146    OF THE TIME, PLACE AND MANNER OF
Ignorance, inadvertence, mistake or even intentional
wrong on the part of local officials should not be
permitted to disfranchise a district. Yet rules, uniformity of procedure, are as essential to procure
truth and exactness in elections, as in anything else.
Irregularities invite and conceal fraud."
If we keep in view these general principles, and
bear in mind that irregularities are generally to be
disregarded, unless the statute expressly declares
that they shall be fatal to the election, or unless they
are such in themselves as to change or render doubtful the result, we shall find no great difficulty in determining each case as it arises under the various
statutes of the several States.
~ 201. By an act of Congress, approved July 25,
1866, [14 State at large, 243,] it is provided that
"the legislature of each State which shall be chosen
next preceding the expiration of the time for which
any Senator was elected to represent said State in
Congress shall, on the second Tuesday after the
meeting and organization thereof, proceed to elect a
Senator in Congress in place of such Senator so going out of office:"
The power to pass this act is derived from Sec. 4,
Art. 1, of the Constitution which authorizes Congress to make or alter regulations concerning the
time and manner of holding elections for Senators.
Senators must be chosen by the legislature which
shall have been "chosen next preceding the expiration of the term" of the Senator elected to represent the State in Congress, and a person chosen as
Senator by any other legislature, can have no right
to the seat.  (Norwood's Case Senate Report, No. 10,
42 d Congress.




HOLDING ELECTIONS, AND OF NOTICE.    147
~ 202. Where a State government is organized and:senators and representatives chosen, either in a territory or within the limits of a state, which has been
disorganized by reason of participation in rebellion,
the subsequent recognition by Congress of the State
thus organized, relates back to, and makes valid, the,election of such senators and representatives. [Case
-of Abikjah Gilbert, Senatorfromz Florida, 41st Congress, andof Morgan C. Hamilton, Senator from Tex-,as, 42d Congress.]
~ 203. It is not necessary under the act of Congress, of July 28, 1866, to regulate the time and manner of holding elections for senators in Congress, that,the election by the legislature should actually take
place on the "second Tuesday after its organization."
It is enough if on that day the legislature takes action
on the subject, and actually votes, though unsuccessfully, for a person to fill the office of senator. [Case
of Abzjah Gilbert, supra.] The legislature must, however, continue to meet in joint convention until a
-choice is reached. The principal purpose of the act,of Congress was, to deprive one house of the legislature of the power to prevent an election by refusing'to go into a joint convention for that purpose.




148    THE PRIMA FACIE RIGHT TO OFFICE.
CHAPTER IV.
OF THE PRIMA FACIE RIGHT TO AN OFFICE.
~ 204. Where two or more persons claim the
same office, and where a judicial investigation is required to settle the contest upon the merits, it is
often necessary to determine which of the claimants
shall be permitted to qualify and to exercise the functions of the office, pending such investigation. If
the office were to remain vacant pending the contest it might frequently happen that the greater part
of the term would expire before it could be filled;
and thus the interests of the people might suffer
for the want of the services of a public officer. Besides, if the mere institution of a contest was to be
deemed sufficient to prevent the swearing in of the
person holding the usual credentials, it is easy to see
that very great and serious injustice might be done.
If this were the rule, it would only be necessary for
an evil disposed person, tQ contest the right of his
successful rival, and to protract the contest as long
as possible, in order to deprive the latter of his office
for at least a part of the term. And this might be
done, by a contest having little or no merit on his
side, for it would be impossible to discover, in advance of an investigation, the absence of merit.
And again, if the party holding the ordinary credentials to an office, could be kept out of the office by
the mere institution of a contest, the organization




THE PRIMA FACIE RIGHT TO OFFICE.    149of a legislative body, such for example as the House
of Representatives, of the United States, might be
altogether prevented, by instituting contests against
a majority of the members, or what is more to be apprehended, the relative strength of political parties
in such a body might be changed, by instituting contests against members of one or the other of such
parties, These considerations have made it necessary to adopt, and to adhere to, the rule, that the
person holding the ordinary credentials shall be
qualified, and allowed to act pending a contest and
until a decision can be had on the merit.
~ 205. No particular form of credentials is required.  It is sufficient if the claimant to an office
presents a certificate signed by the officer or officers
authorized by law to issue credentials, and stating
generally the fact that the election was duly held
and that the claimant is duly elected to the office in
question. If several officers or persons, are by law
required to join in such a certificate, it is generally
sufficient if a majority have signed it.
~ 206. Where the statute requires the votes of
several counties composing a congressional district
to be canvassed by one judge from each county, and
that the result shall be certified by a board composed of one judge from each county, the certificate
of four out of five of such judges based upon a full
canvass of the vote. is, prima facie, sufficient. The
refusal of the fifth judge to join in the certificate
will not invalidate it, (Coffroth vs. Kountz, 2 Bartlett
25.)
~ 207. In the absence of any express provision
aOf the State law authorizing any officer to certify to




150    THE PRIMA FACIE RIGHT TO OFFICE.
the due election of members of Congress, it is presumed that under the usages of the House a certificate under the great seal of the State, signed by its
chief executive officer, would constitute sufficient
credentials, within the meaning of the statute of
1867. ( W. T. Clark's Case 42d Congress.)
~ 208. It is enough for aprima facie case, if the
certificate comes from the proper officer of the State,
and clearly shows that the person claiming under it
has been adjudged to be duly elected by the officer
or board on whom the law of the State has imposed
the duty of ascertaining and declaring the result.
Ibid. And see Kerr vS. Trego, (47 Pa. S/ale R. 292,)
where it is held that the certificate of election sanctioned by law or usage, is primafacie evidence of
title to the office, and can only be set aside by a
contest in the form prescribed by law. In this latter
case will be found also an elaborate and able discussion of the general subject of the organization of
legislative bodies, to which the reader who may desire to investigate that subject is referred.
~ 209. Where the statute gives the Governor of
a State the power, and makes it his duty, to commission the person elected to an office, the issuing
of a commission by him confers a vested right upon
the person commissioned, which nothing but a judicial decision can take away or authorize the Govenor to recall. It was accordingly held in Ewing vs.
Thompson, (43 Pa. Stale R., 372,) that where the
Governor in 1861 commissioned Ewing as sheriff of
the city and county of Philadelphia, and afterwards
undertook to commission Thompson as duly elected
at the same election, to the same office, the latter




THE PRIMA FACIE RIGHT TO OFFICE.    151
commission was void, and the former valid,; until set
aside by a contest. "The power of the Governor"
says Strong, J., in that case, "to revoke a commission once issued to an officer, not removable at the
pleasure of the Governor, may well be denied; even
where he has the power of appointment of such an
officer; an appointment once made is irrevocable;
much more, it would seem is a commission issued
by him, incapable of being recalled or invalidated
by himself, when the appointing power is located
elsewhere, and where his act in issuing the commission, is not discretionary with him, but is only the
performance of a ministerial duty." And see the
important case of Marbury vs. Madison, (1 Cranch,
137.)
~ 210. But, of course, a commission given by the
Governor, or other competent authority, does, not
oust the jurisdiction of the proper tribunal, in a contested election case. It is simply evidence of the
right to hold the office; gives color to the acts of the
incumbent, and constitutes him an officer de facto.
The election being set aside, or the person holding
the commission being held not elected, by a tribunal of competent jurisdiction, the commission falls to
the ground. The person duly commissioned must
exercise the functions of the office until, upon an investigation upon the merits, it is judicially determined
otherwise. Upon the subject of the eftect of a commission, see Ewing vs. Filley, (43 Pa. St. R., 384.)
State vs. 7ohnson, (17 Ark., 407.)  Hunter vs. Chandler, (45 Mo., 453.)
~'211. In the case of Morton vs. Daily, (1 Bartlett,
409,) there were two certificates of election issued




152    THE PRIMA FACIE RIGHT TO OFFICE.
by the same Governor; first, a certificate declaring
Mr. Morton duly elected, and at a later date a certificate declaring Mr. Daily duly elected. The second certificate was issued upon the alleged discovery
by the Governor, of fraud, in the vote counted for
Mr. Morton, and by the second certificate the Governor revoked, as far as he was able, the first. The
house allowed the holder of the last certificate to be
sworn in, and to occupy the seat, pending the contest.  By so doing, however, the house assumed
that the Governor might go behind the returns, investigate questions of fraud, and assuming a judicial character, determine such questions, and it also
assumed that the Governor possessed the power to
revoke a certificate once issued by him. But there
seems to be no doubt but that, in the absence of a
statute authorizing the Governor to institute a judicial inquiry into the manner of conducting an election, he is bound by the returns, and has no power
beyond the certification of the result, as shown
thereby.  The duty of investigating charges of
fraud, and deciding upon them can never be justly
assumed by an executive officer, but belong exclusively to such judicial or quasi judicial tribunal,
as the law may designate for that purpose.  (Switzler vs. Dyer, 2 Bartlett, 777. State ex. rel. Bland vs.
Rodman, Sec'y of State, 43 Mo., 256, State vs. Steers,
44 Mo., 224-228. Swilzler vs. Anderson, 2 Bartlett,
374.)
~ 212. The case of Morton vs. Daily was followed by the House in Hoge vs. Reed, (2 Bartlett 540.)
But it must have been without due consideration, for
the same House held the contrary doctrine in




THE PRIMA FACIE RIGHT TO OFFICE.    153'
Wallace vs. Simpson, (2 Bartlett 552.)  In that case
the board of State canvassers being by law required
to certify the result of the election, gave their certificate declaring that W. D. Simpson "was duly elected
by a majority of votes, representative in the fortyfirst congress," and upon that certificate, the Governor issued to Mr. Simpson the usual commission or
certificate of election. By another certificate, the
board of canvassers declared that Alexander Wallace had "received a majority of the legal votes" cast
for representative, and as explanatory of this contradiction on their part, they made and signed a "statement" addressed to the House of Representatives, detailing certain alleged irregularities and frauds committed in the conduct of this election, and declaring
that, although they had felt themselves in duty bound
to issue the certificate of election to Mr. Simpson,
yet, they were convinced that he was not duly elected. Upon these papers the majority of the committee of elections reported that Mr. Wallace was entitled, prima facie, to the seat, and they submitted a
resolution that he be sworn in, pending the contest,
upon the merits. But the house, after debate, adopted minority report, which decided the prima facie
case against Mr. Wallace. This decision of the
House appears to have been based upon the following grounds:
1. That the certificate of election signed by the
Governor was in due form and declared the election
of Simpson, and that the House should not look
beyond it in deciding the prima facie case.
2. That the subsequent statement was an unauthorized and unofficial paper of no value as evidence,




154    THE PRIMA FACIE RIGHT TO OFFICE.
and could not be properly considered; but, if considered, it showed upon its face that the board of
canvassers had gone outside of their province, in
order to investigate charges of fraud and violence,
in the conduct of the election.
3. That the board having made a certificate of the
result, and transmitted the same to the Secretary of
State, had no power thereafter to make another and
different certificate. The correctness of these propositions is, as we have had occasion to show elsewhere,,
well established by judicial decisions, as well as by
frequent decisions of the House of Representatives
itself.
~ 213. In the case of Shzeafe vs. Tillman, (2 Bartlett, 907,) a like question was again considered, and
the sound rule that a ministerial or executive officer
can exercise no judicial functions, was adhered to.
In the report in that case the doctrine is laid down
as follows: (p. 910.)
"There is no law of the State of Tennessee thatgives authority to the Governor to reject the vote of
any county or part of a county; his duty is only to
compare the returns received by him with those returned to the office of the Secretary of State, and
upon such comparison being made, to " deliver to
the candidate receiving the highest number of votes
in his district the certificate of his election as Rep —
resentative  to  Congress."  (Code of  Tennessee,
Sec. 935, page 239.)  If illegal votes have been
cast, if irregularities have existed in the elections in
any of the counties or precincts, if intimidation or
violence has been used to deter legal or peaceable
citizens from exercising their rights as voters, to this




THE PRIMA FACIE RIGHT TO OFFICE.    155
House must the party deeming himself aggrieved,
look for redress. This great power of determining
the question of the right of a person to a seat in
Congress, is not vested in the executive of any
State, but belongs solely to the House of Representatives. (Constitution United States, Art. 1,.
Sec. 5.)
The action of the Governor, so far as he has
thrown out the votes of counties or parts of counties, is to be disregarded, and the matters in dispute
are to be settled upon the actual returns and the
evidence introduced, independent of the doings of
the executive."
And this ruling is according to the weight of authority in the House, while it has the support not
only of reason and sound policy, but of an almost
unbroken line of judicial decisions, extending far
back through our history as a nation.
~ 214. There is still another class of cases which
have arisen in the lower house of Congress, in which
neither party holds credentials, the Governor or
other returning officer having refused to declare either party elected. In some of these cases the
house has undertaken upon such documentary evidence as it has been able to bring before it, without
delay, to decide the primafacie claim, and order one
or the other to be sworn in, pending the contest.
(Koun/z vs. Coffroth, 2 Bartelltt, 25. Foster vs. Covode, do 519.)
~ 215. Of course the House must, in each case of
this character, judge whether there is before it, sufficientprimafacie evidence of the election of either
one of the claimants, but, as a general rule, it is be



156    THE PRIMA FACIE RIGHT TO OFFICE.
lieved that in the absence of credentials, no one
should be admitted to the seat in advance of an investigation upon the merits. And if this general
rule is to be departed from in any case, it should be
only after a special investigation, by a committee,
into the primafacie case, and after a report thereon.
And such special inquiry and report can scarcely be
possible, unless there is something in the nature of
credentials or of written evidence of the election of
one or the other claimant. If the returns are duly
certified the House may act upon these, or if there
is an informal certificate the House may order an
inquiry into its effect.'But if there is no record or
other documentary evidence to show what the result
of the election was, it is believed that a full investigation upon the merits should precede the swearing
in of either applicant. If the House finds itself obliged to take testimony generally, to decide the
primafacie case, it will generally find that it cannot
stop short of hearing all the evidence and deciding
upon the merits.
~ 216. It is to be observed in this connection that
while in determining the primafacie right to a seat,
the House of Representatives will not look behind
the certificate, if it be signed by the proper officers,
and if it contains a statement in unequivocal terms of
the result of the election; yet something may appear upon the face of the certificate itself to destroy
or impair its value as primafacie evidence.
~ 217. If, for instance, the certificate states that
the vote of one county out of five, has not been canvassed, it seems that this would make it necessary
even to the determination of the prima facie case to




THE PRIMA FACIE RIGHT TO OFFICE.    157
inquirewhat the vote was in the county omitted. And
if it appear that the vote of the county omitted
would have changed the result, the value of such
a certificate is destroyed. But if it appear that the
vote of the omitted county was not material to the
result, then, according to the ruling of the House
in Kounlz vs. Coffroth, (2 Bart/ell 25,) the certificate is good, although based only up on the four
counties canvassed. Whenever, therefore, it appears upon the face of a certificate of election,
that one or more of the counties composing the
district, have been omitted from the canvass, it
is the duty of the house, before, determining the
prima facie case, to inquire into the effect of such
omission upon the result of the canvass, and to
treat the certificate as prima facie good only in case
it appears that the omitted vote would not change
the result, or contradict the certificate, if admitted.
~ 218. The principal, and almost the only case in
which the lower House of Congress has ever denied
to a person holding regular credentials, the right to
be sworn and to take his seat, pending the contest,
is the celebrated New 7ersey Case, (1 Bartlett, 19.)
In that case one set of claimants held the regular
certificate of election signed by the Governor, and
another set held the certificate of the Secretary of
State, that they had received a majority of the votes
cast in their respective districts. After a long and
angry debate the house, (being yet unorganized,)
refused to admit either set of claimants to their
-seats. Subsequently, and after a partial investigation, the holders of the Secretary's certificate were
admitted to seats pending the contest, and at the




158    THE PRIMA FACIE RIGHT TO OFFICE.
end of the contest these persons were confirmed in
their seats. This precedent has never since been
followed in a single instance. It is so clearly wrong
and as a precedent, so exceedingly dangerous, that
the House has not hesitated to disregard it entirely,
on every occasion, when the question has arisen.
~ 219. The effect of the returns of an election is
not open for consideration in a proceeding in which
the title to the office comes up collaterally. Hence
it was held in New York that the law having committed to the common council of a city, the duty of
canvassing the returns and determining from them
the result of the election for mayor, and ttie council
having performed that duty, and made a determination, the question as to the effect of the returns
could not be considered, in an action where the person declared elected was not a party, and in which
the question of his right to the office arose collaterally. "If," says Denzm, 7., "the question had arisen
upon an action in the nature of a quo warranto information, the evidence would have been competent," and the evidence referred to was that offered
to impeach the canvass made by the common council.
"But," he continues, "it would be intolerable to allow a party affected by the acts of a person claiming
to be an officer, to go behind the official determination to prove that such official determination arose
out of mistake or fraud.  (Hadley vs. City of Albany,
33 New York, 603.)  And see also Peyton vs. Brent,
(3 Cr. CC., 434,) and Hunter vs. Chandler, (45 Mo.,
453.)  The true rule is, that the certificate of the
board of canvassers declaring the result of the election, is, in a controversy arising between the party




THE PRIMA FACIE RIGHT TO OFFICE.    159
holding it and a stranger, conclusive, but in a
proper action, properly entitled, to impeach it, and
try the title to the office, it is only prima facie evidence of the right. See Peopfie vs. Cook, 8 N. Y.,
67. People vs. Vail, 20 Wend., 12. Peopile vs. 7ones,
20 Cal., 50.  Commonwealth vs. Co. Commissioners, 5
Rawl, 75.
~ 220. The merits of a contested election cannot
be taken from the proper tribunal authorized by law
to try it, and brought for adjudication into a court of
equity, upon a bill to enjoin the party holding the
certificate of election from using it, upon the ground
that it was procured by fraud. This doctrine is
strikingly illustrated by the decision of the Supreme
Court of Pennsylvania in Hulseman vs. Rems, (41 Pa.
Slate R 396,) which was a petition for an injunction
upon this ground. The court, although satisfied that
the officer in question held a certificate based upon
the grossest of frauds, amounting even to the actual
forgery of some of the returns; yet refused to interfere by injunction, and for the following among,other reasons: "If" says the court "in this way we
suffer a gross fraud to pass through our hands without remedy, it is not because we have any mercy on
the fraud, but because we cannot frustrate it by any,decree of ours without an act of usurpation. Another
tribunal is appointed to administer the remedy and
we believe that on proper application, it will administer it rightly according to the evidence it may have;
and if we had any doubts of this we should still not
be justified in interfering."
~ 221. There can be no doubt, but that a certificate of election regular in form, and signed by the




160    THE PRIMA FACIE RIGHT TO OFFICE.
proper authority, constitutes primafacie evidence of
title to the office, which can only be set aside by such
proceedings for contesting the election as the law
provides. (Commonwealth vs. Baxter, 35 Penn. St. R.
263. Kerr vs. Trego, 47 Pa. State R. 292. The State
vs. The Governor, 1 Dutch [N. 7.] 331. The certificate whether rightfully or wrongfully given, confers upon the person holding it, the primafacie right
to the office.  (Peopfe vs. Miller, 16 Mich. 56.
Crowell vs. Lambert, 10 Minn. 369. State vs. Sherwood, 15 Minn. 221.  Stale vs. Churchill, ibid, 455.]
If, however, the certificate contains upon its face a
recital of facts, and these facts show affirmatively
that the party holding it was not duly elected, it may
be disregarded.  (Hartt vs. Harvey, 32 Barbour, 61.
~ 222. The regular certificate of election properly
signed, is, as we have seen, to be taken as sufficient
to authorize the person holding it to be sworn in.
It is prima facie evidence of his election and the
only evidence thereof which can be considered in
the first instance, and in the course of the organization of a legislative body. But there are questions
which may be raised, touching the qualifications of a
person elected, which may be investigated and decided as a part of the primafacie case, and as preliminary to the swearing in of the claimant. Thus, if
a specific and apparently well grounded allegation
be presented to the House of Representatives of
the United States, that a person holding a certificate
of election, is not a citizen of the United States, or
is not of the requisite age, or is for any other cause
ineligible, the House will defer action upon the
question of swearing in such person, until there can




THE PRIMA FACIE RIGHT TO OFFICE.    161
be an investigation into the truth of such allegation.
It is necessary, however, that such allegation should
be made by a responsible party; it is usually made
or vouched for at least, by some member or member elect of the House. It is to be presented at
the earliest possible moment after the meeting of
the House for organization, and generally at the
time that the person objected to, presents himself to
be sworn in. The person objected to upon grounds
such as these, is not sworn in with the other members, but stands aside for the time being, and the
House through its committee with all possible speed
proceeds to inquire into the facts.
~ 223. The certificate of election does not ordinarily, if ever, cover the ground of the due qualification of the person holding it. It may be said that
by declaring the person "duly elected," the certificate, by implication, avers that he was qualified to
be elected, and to hold the office. But it is well
known that canvassing officers -do not in fact inquire
as to the qualifications of persons voted for; they
certify what appears upon the face of the returns,
and nothing more. The certificate, therefore, must
be regarded as evidence of the election of the person named therein, so far conclusive, that it cannot
be attacked except in the ordinary mode provided
for contesting, but it is not evidence of the qualificalions of the person named. The presumption always
is, that a person chosen to an office is qualified to
fill it, and it is never incumbent upon him to prove
his eligibility. The certificate of election does not
add to this presumption, but simply leaves it where
the law places it, and he who denies the eligibility
11




162    THE PRIMA'FACIE RIGHT TO OFFICE.
of a person who is certified to be elected, must take
the burthen of proving that he is not eligible. During the rebellion the House of Representatives repeatedly decided that a disloyal person should not
be sworn in as a member of that body, and it was
also decided that a charge of disloyalty against a
member elect should be investigated and decided,
previous to his being allowed to take his seat. In
the case of the Kentucky election, (2 Bartlett, 329,)
this was the ruling of the House. The doctrine
was thus stated in the committee's report:
"The committee are of opinion that no person
who has been engaged in armed hostility to the
government of the United States, or who has given
aid and comfort to its enemies during the late rebellion, ought to be permitted to be sworn as a mem-'ber of this House, and that any specific and wellgrounded charge of personal disloyalty made against
a person claiming a seat as a member of this House,ought to be investigated and reported upon before
such person is permitted to take the seat; but all,charges touching the disloyalty of a constituency in
a State in which loyal civil government was not
overthrown during the late rebellion, or the illegality
of an election, are matters which pertain to a contest in the ordinary way, and should not prevent a
person holding a regular certificate from taking his
seat."
~ 224. The case of Hunt vs. Chilcott, (2 Bartlett
164,) is one of the very few cases in which a certificate of election signed by the'proper authority, has
been held insufficient to entitle the holder to be
sworn in a member of the House of Representa



THE PRIMA FACIE RIGHT TO OFFICE.   163
tives of the United States, and to occupy the seat,
pending a contest. The reason for this action, however, was that the party holding the certificate had
voluntarily offerred evidence which impeached it.
The committee said in their report:
"But Mr. Hunt did not rest his case upon that
paper alone. He introduced Governor Cummings
in its support. The governor informed the committee, that on the said 5th of September a canvass of
the votes cast for delegate was had in his presence,
by the board of canvassers; that two of said board
found that a majority of all the votes had been cast
for George M. Chilcott, and that one of said board
dissented' from this conclusion, and that he, the governor, considering himself one of the board, agreed
with the dissenting member, making a tie, whereupon he determined the election himself, and made
a certificate in opposition to the conclusion of two
members of the board. In addition to the governor's statement, among the papers submitted by
the House, is a report of the board of canvassers,
signed by Frank Hall, Secretary of the Territory,
and Richard E. Whitsitt, Auditor of the Territory,
and addressed to the governor, in which they state
that at the canvass held in his presence, according
to law, they find that Mr. Chilcott had 3,'529 votes,
and A. C. Hunt had 3,421 votes, by which it would
appear that Mr. Chilcott was elected delegate by
108 majority. The certificate of the Governor thus
appears to have been issued in violation of the laws
of the Territory, in order to reverse the facts of the
canvass. Under this state of facts the committee do
not feel authorized to report that Mr. Hunt is entitled, primafacie, to a seat as delegate."




164      ELIGIBILITY TO OFFICE. TENURE.
While, therefore, it was conceded that the House
should not insist upon looking beyond the certificate
in determining a primafacie case, it was held that if
the party holding the certificate saw fit to offer evidence in addition to the certificate, the House might
take notice of it.
~ 225. While it is, as we have seen, true that
where a certificate of election is confined to a statement that the person to whom it is given is duly
elected, or words to that effect, it is prima facie evidence that such person is entitled to the office, it is
also true that where it recites the facts, upon which
the certifying officer relies as his justification for
issuing it, and where, from those facts, it clearly appears that the person named was not elected, the
certificate destroys itself.  [Hartt vs. Harvey, 32
Barb. 55.]
CHAPTER V.
OF ELIGIBILITY TO OFFICE, AND OF TENURE.
~ 226. The qualifications for federal offices are
fixed by the federal constitution or federal law, and
the qualifications for state offices, are fixed by state
constitutions or state laws. It is not competent for
any state to add to or in any manner change the
qualifications for a federal office, as prescribed by the
constitution or laws of the United States. Nor can
the United States add to, or alter the qualifications
for a state office, as fixed by State regulations.




ELIGIBILITY TO OFFICE. TENURE..165
~ 227. The constitution of the United States fixes
the qualifications of representatives in congress, in
the following words:
"No person shall be a representative who shall
not have attained the age of twenty-five years and
have been seven years a citizen of the United States
and who shall not when elected be an inhabitant of
that State in which he shall be chosen." (Consitfution Art. 1, Sec. 2.)  A State law requiring that a
representative in Congress shall reside in a particular town or county within the district from which he
is chosen, is unconstitutional and void. (Barney vs.
McCreery.  Cl. & H., 169.)
~ 228. The constitution of Illinois, of 1848, provided as follows:
"The judges of the Supreme and Circuit Courts
shall not be eligible to any other office or public
trust of profit in this State, or the United States, during the term for which they are elected nor for one
year thereafter. All votes for either of them for
any elective office, (except that of judge of the Supreme or Circuit Courts) given by the General Assembly or the people, shall be void."
The House of Representatives held that this
clause of the constitution of Illinois, so far as it
related to the election of member of Congress, was
void, because in conflict with the federal constitution,
and, also because it was an unauthorized attempt on
the part of the State of Illinois to fix or to change
the qualifications of Representatives in Congress.
Mr. Marshall and Mr. Trumbull, of Illinois, were
elected Representatives in the thirty-fourth Congress. They had previously been elected, respec



166     ELIGIBILITY TO OFFICE. TENURE.
tively, judge of the Supreme and Circuit Court of
that State, for terms which had not expired. This
was held to be no objection to their holding the office
of Representative in Congress.  (cTaney vs. Marshall, 1 Bar telt 167. Fouke vs. Trumbull, 1 Bartlett
167.  The United StatesSenate adopted the same
rule in Trumbull's case, (ibid p. 619.)
~ 229. The Supreme Court of Pennsylvania has
held that the trial and conviction of a sheriff of the
offence of bribing a voter, previously to his election,
does not constitutionally disqualify him from exercising the duties of his office, because it is not a
conviction of " any infamous crime," within the meaning of the constitution of that State. (Commonweal/h vs. Shover, 3 Walls and'Sergeant, 338, Bright-,ley's Election Cases, 134.) In the opinion in this case
will be found an elaborate discussion of the meaning of the terms "infamous crime," and a reference
to many authorities upon that subject.  It seems
that infamous crimes are treason, felony, and every
species of the crimenfalsi, such as forgery, perjury,
subornation of perjury, &c.
~ 230. The acceptance for a term of years of an
office, the duties of which require the incumbentto
reside outside of the limits of a given place, does not
necessarily render him ineligible to another office,
one of the qualifications of which is residence within
such place. If the office accepted is for life, the law
presumes that upon its acceptance the incumbent
elects to make his residence permanently where its
duties are to be discharged, but if it be an office only
for a term of years, or for an indefinite period, the
presumption is that no change of residence is in



ELIGIBILITY TO OFFICE. TENURE.     167
tended, and nonie of the rights or privileges of his
residence are lost by the acceptance of it.  (Commonweal/h vs. 7ones, 12 Penn. S/ate R., 67.)
~ 231. We come now to a question which has
been much discussed, and upon which the authorities are somewhat conflicting; it is this: suppose the
candidate who has received the highest number of
votes for an office is ineligible, and that his ineligibility was known to those who voted for him before
they cast their votes, are the votes thus cast for him
to be thrown out of the count, and treated as never
cast, and should the minority candidate, if eligible,
be declared elected in such a case.? No doubt the
English rule is, that:where the majority candidate
is ineligible, and sufficient notice of his ineligibility
has been given, the person receiving the next highest number of votes being eligible, must be declared elected. Great stress is laid upon the fact of
notice having been given, and, the reason of the
English rule is said to be "that it is wilful obstinacy
and misconduct in a voter to give his vote for a person laboring under a known incompetency." (Soulhwatrk on Eleclions,. 259.)  An examination of the
English cases will show that in some of them: the
election was declared void, and sent back to the
people, on the ground that there was not sufficient
notice of the incapacity of the successful candidate,
while in others the minority candidate was declared
elected, on the ground that due notice of the ineligibility of the person receiving the majority was
given. The following are some of the principal
English authorities upon the subject. Rex vs. Monday, CowJz., 537. Rex vs. Coe, Heyzvood 361. Rex




168     ELIGIBILITY TO OFFICE. TENURE.
vs. Bissell, ibid 360. Rex. vs. Parry, 14 East, 549.
Regina vs. Coaks, 28 Eg. L. and Eq., 304, 7 Q. B.,
406. Heywood on County Elections, 535. Male on
Elections, 336. King vs. Hawkins, 10 East, 210.
Claridge vs. Evelyn, 5 B. and A., 8.  Clarke on Eleclion Committees, page 156. Southwark on Elections,
page 259.
~ 232. Although the law of the British parliament, as well as that administered in the courts of
that country, recognizes the rule as laid down in the
cases just cited, the House of Representatives of
the United States has refused to adopt it. See the
case of Smith vs. Brown, (2 Bartlett, 395,) in which,
in an able report, submitted by Mr. Dawes, chairman of the Committee of Election, the authorities
are reviewed, and the conclusion is reached, "that
the law of the British parliament, in this particular,
has never been adopted in this country, and is
wholly inapplicable to the system of government
under which we live." And the courts of this
country generally take the same view.
~ 233. Thus, in Commonwealth vs. Cluley, 56 Pa.
St. R. 270, the Supreme Court of Pennsylvania held
that where at an election for Sheriff, a majority of
the votes are cast for a disqualified person, the next
in vote is not to be returned as elected; and the Supreme Court of California in Saunders vs. Haynes,
(13 Cal. 145,) holds the same doctrine and enforces
it, by cogent reasoning. And in Wisconsin we have
the same ruling in State vs. Giles, (1 Chand. 112,)
and in State vs. Smith, (14tl Wis. 497. And see
opinion of judges, 32 Maine, 597. State vs. Boal, 46
Mo. 528.  Cushing Election Cas. 496, 576, and see,




ELIGIBILITY TO OFFICE. TENURE.      169
Slate vs. Anderson, (1 Cox N. 7. 318. Peoiple vs.
Chlue, 50 N. Y.) But in Indiana the doctrine of the
English authorities has been followed. (Gulich vs.
New, 14 Ind. 93.  Carson vs. Phelridge, 15 Ind. 327,)
and see Slewart vs. Hoges in Circuit Court of Stephenson County, Illinois.  [3 Chicago Legal.News 117.]
~ 234. Thus, it will be seen that the weight of
authority in this country is decidedly against the
adoption here of the English doctrine. And we
think that sound policy, as well as reason and authority, forbids the adoption of that doctrine in this
country. It is a fundamental idea with us that the
majority shall rule, and that a majority or at least a
plurality shall be required to elect a person to office
by popular vote. An election with us, is the deliberate choice of a majority or plurality of the electors.
Any doctrine, which opens the way for minority rule
in any case, is anti-republican and anti-American.
The English rule, if adhered to, would in many cases
result in compelling very large majorities to submit
to very small minorities, as an ineligible person may
receive, and in many cases has received, a great
majority of the votes. It is enough, in such a case,
to hold the election void.
~ 235. This question was elaborately discussed
and settled, so far as the Senate of the United States
is concerned, in the case of 7oseph C. Abbott of North
Carolina. The decision in that case was against the
adoption of the English rule in this country, and Abbott, who, notwithstanding he received only a minority of the votes cast, claimed a seat, upon the ground
that he was the only eligible person voted for, was
declared not elected. And it was distinctly asser



170     ELIGIBILITY TO OFFICE. TENURE.
ted, in the report of the committee, that the factthat the voters have notice of the ineligibility of the
candidate at the time they cast their votes for him,,
makes no difference. The remark of Judge Strong,.
in Commonwealth vs. Cluley, [suzbra,] that " the disqualified person is a person still, and every vote
thrown for him is formal," is quoted with approbation. The broad doctrine was asserted that in this
country an election, by a minority of the persons
voting, is not to be tolerated under any circumstances. Mr. Carpenter, from the minority of the committee, submitted an elaborate report maintaining
the right of Mr. Abbott to the seat, and the debate
was exhaustive, but the Senate sustained the majority of the committee.  (Senate Rep. No. 58, 42dCongress, Second Session.)
~ 236. If the official term  of a public officer is
limited to a given number of years, of course, at the
end of such term, unless a successor has been chosen and qualified, the office becomes vacant. Hence
it is that in most of the States there are constitutional or statutory provisions, to the effect that all
public officers shall hold for a given period, and until their successors are duly qualified.  Such a
clause is to be found in the constitution of Pennsylvania, and under it the Supreme Court of that
State held that where the person elected to an office
dies before being qualified, the previous incumbent
holds over.  (Commonwealth vs. Iauley, 9 Pa. St. R.
513.) In such a case the death of the person
elected creates no vacancy. Never having occupied
the office, his death made no change in it. Therefore, though the Governor be authorized to fill all




ELIGIBILITY TO OFFICE. TENURE.      171
vacancies by appointment, he had no power in such
a case to appoint.
~ 237. To the same effect is State vs. 7enkins, (43.
Mo., 261.)  State vs. Robinson, (1 Kansas, 17.) State
vs. Benedict, (15 Minn., 199.)  It is very clear that
no appointment can be made to fill a vacancy until
the office has once been full. And, accordingly, it:
has been held by the Senate of the United States
that the words "all vacancies that may happen during the recess of the Senate," mean such vacancies
as occur from death, resignation, promotion or removal.  [Sargeant Const. Law, 373.]  See also the:
decision of Caldwell, J., in the Circuit Court of the.
United States, eastern district of Arkansas, April
term, 1868, in Schenck vs. Peay. Story on the Con
stitiuion, Sec. 1559.'Ex  arte Dodd., 6 Eng., 152.
~ 238. It is well settled that the acceptance by a
member of Congress of a disqualifying office after
he has taken his seat, operates as a forfeiture of it,
and creates a vacancy in the house to which such
member belongs. (Case of Van Ness, Clark and
Hal/, 122.  Cases of Baker and Yell, 1 Bartlett, 92.
Byinglon vs. Vandever, do 395. Stanton vs. Lane, do
637.)
Whether the incumbent of one, office becomes
disqualified by accepting another, depends upon the
question whether the law forbids the holding of the
two offices by the same person, and if not, then
upon the further question whether the functions and
duties of the two offices are incompatible.
~ 239. If there is a statutory or constitutional
provision prohibiting the same person from holding
both the offices at the same time, then of course the




172     ELIGIBILITY TO OFFICE. TENURE.
question of their incompatibility does not necessarily arise, for in such a case the acceptance of the
second is izsofacto, the abandonment and resignation of the first, though the duties of the two may
be entirely compatible. But if the statute and constitution are silent upon the subject, then the question whether the two offices can be held at the same
time by the same person, depends upon their compatibility.
~ 240. The sixth section of the first article of the
constitution of the United States provides that, "no
person holding any office under the United States,
shall be a member of either House during his continuance in office." Under this provision it has been
frequently held, that the acceptance, of a commission as an officer of volunteers in the U. S. Army, is
the acceptance of an office under the United States,
and that the acceptance of such commission by a
member of Congress, vacates his seat. [See cases
last above cited.]  While it is true that the commissions of officers of volunteers are ordinarily issued
by the State authorities, it does not follow that they
are State officers. They serve the United States,
they are paid by the United States, and subject to
the orders of the President. They are responsible
only to federal authority for the faithful performance
of their duties. These tests show them to be offi-cers of the United States.
~ 241. But an important question has arisen, as
to whether a member of Congress elect who has not
yet been qualified as such, may be an officer of volunteers.  In the case of Robert C. Schenck, of
Ohio, this identical question arose in the House of




ELIGIBILITY TO OFFICE.. TENURE.    173.
Representatives of the thirty-eighth Congress. In
that case it was held that if a "member of Congress,
after he has ualizfied or entered upon the discharge of
his duties as such member, accepts or enters upon
the discharge of any office under the United States,
he, ipsofacto, vacates or forfeits his seat as a member
of Congress." Gen. Schenck was elected to the
thirty-eighth Congress in October 1862. That Congress did not organize until December 1863. On
the 16th of March 1863, he was commissioned a
Major General of volunteers, and entered upon the
discharge of his duties as such, but resigned prior to
the meeting of Congress in December 1863, and
did no act as a Representative in Congress and indicated no acceptance of it, until after his resignationas Major General, nor until the meeting of Congress at the time above named.
~ 242. The case of Gen. Blair of Missouri decided at the same time, was precisely similar to that of
Gen. Schenck in all respects except one. Gen.
Blair continued to exercise.the functions of the office
of Major General after Congress met and organized,
having resigned his commission January 1, 1864, in
order to take his seat in the House. The two cases
were alike in this; each held.another office under
the United States after his election to the thirty-eighth
Congress, and after the legal existence or constitutional term of that Congress commenced, to-wit,
March 4th, 1863; they were unlike in this; General
Schenck resigned his commission in the army, before
Congress met, and consequently before he had an
opportunity to elect between the two offices, whilst
Gen. Blair continued to hold his commission in the




174     ELIGIBILITY TO OFFICE. TENURE.
-army and to exercise his functions, under it, after
Congress met and after he had such option or election. Because of this important difference between
the two cases, the seat of Gen. Blair was declared
vacant, while that of Gen. Schenck was declared
not vacant. So far as Gen. Schenck's case was concerned the question presented had been previously
decided by the House, it having been held that a
person may continue to exercise the functions of an
office under the United States, after he is elected a
member of Congress, and after the constitutional
term of Congress commences, and prior to his taking his seat.  (Hammond vs. Herreck, CI. & H., 28.
Case of Elias Earle, Ibid, 314.) But Gen. Blair's,case presented a new question. An able and interesting report upon these two cases was made from
the committee of elections by its chairman, the Hon.
Henry L. Dawes of Mass. (Report No. 110, 1st.
Sess. thirty-eighth  Congress.)  From  this report,
which contains an elaborate discussion of the whole
subject, it is deemed proper here to quote as follows:
"The authorities are equally clear that the mere
appointment or election to an office, the duties of
which are incompatible with those of one already
held, will not vacate such office. This is true even
in England, where the appointment to office cannot
always be avoided, and where once assumed it cannot, as we have seen, be always voluntarily resigned
by the incumbent.  [Willcock on H1Kun. Corp., 243,
248.] And in this country, where the acceptance of
office is purely voluntary, and its resignation equally
so, the reason of the thing as well as authority
clearly leads to the same conclusion. The incum



ELIGIBILITY TO OFFICE. TENURE.      175
bent is free to choose in which of the two offices he
will serve.  He cannot be compelled to serve in the,one or forced to vacate the other, except in some.
manner provided in its tenure. The mere appointment or election to one office, unaccompanied with
consent or acceptance, cannot force a man out of an
office he already holds. Anciently it was tried in
England. A man who was town clerk was elected
alderman without his consent, in order to turn him
-out of his former office, they being incompatible,
~and thereupon he prayed a writ of restitution to the,office of town clerk, which was granted.  (Dyer 332,
6, in the notes.)  So that consent and acceptance
create the vacancy.  And Willcock, in his Treatise
upon Municipal Corporations, before cited, states
that the election of an officer to an incompatible.
*office does not vacate the former before acceptance
by the officer, [p. 243.] In this country, Angeland
Ames on Corporations (Sec. 434,) adopt this same
language, and incorporate it into the text of their
treatise. In Whitney vs. Canique, before cited, [2
Hill, 93,] the same doctrine is clearly stated in the
following words:  "The appointment of a person
to a second.office incompatible with the first is not
absolutely void, but on his subsequently accepting
the appointment and qualifying, the first'office is
ipso'facto vacated." And Mr. Cushing, in his Law:and Practice of Legislative Assemblies, [Sec. 479,]
lays down the same rule, in stating a case which is
-the converse of the one involved in this reference.
He says:  "It may be considered as a rule founded
in the reason of the thing, and corresponding with
-the practice, as far as it is known, of all our legisla



176     ELIGIBILITY TO OFFICE. TENURE.
tive assemblies, that in order to vacate the seat of a
member by the acceptance of the disqualifying or
incompatible office, the election or appointment
thereto alone is not sufficient, but the member must
either have signified his acceptance of the office in
a formal manner, or. have done what is incumbent
on him to qualify him to discharge its duties, or have
actually entered upon its discharge."
"The common law has been shown to be clear
that the election alone to an incompatible office will
not vacate one already held. The language of the
Constitution is, that "no person holding any office
under the United States, shall be a member of either
House during his continuance in office." The words
are, "shall be a member," not "shall be elected." No
one can be made a "member" against his will. He
may be elected without his consent or knowledge, for
he may be in a foreign land; but to "become a member" he must not only be elected, but he must take
the oath of office. The Constitution says: "Each
house shall be the judge of the elections, returns,
and qualifications of its own members;" that is, of
those who have qualified and taken seats. Again:
"A majority of each shall constitute a quorum, but
a smaller number may adjourn from day to day, and
may be authorized to compel the attendance of absent members."  But the attendance of a representative elect was never yet compelled. And, again:
"Each house may determine the rules of its proceedings, punish its members for disorderly behavior,
and, with the concurrence of two-thirds, expel a
member." The committee are not aware of any attempt to punish a representative elect, and of but




ELIGIBILITY TO OFFICE. TEI4URE.   177
one instance of an attempt to expel one. A resolution was adopted by the last House, under the previous question, to expel a person who was a representative elect, but had never signified his acceptance of the office, or qualified, or even appeared in
Washington for the purpose of taking his seat.
But when the Constitution uses the word "representalive," it is in this connexion: "The times, places,
and manner of holding elections of Senators and
Representatives, shall be," &c.: "No person shall be
a Representative who shall not have attained to the
age of twenty-five years." In the clause now under
consideration, the language.is: "No person holding'any office under the United States shall be a
member of either House during his continuance in
office."  No one doubts that the object of the constitutional inhibition was to guard the House against
Executive influence. This object is attained, so far
as it can be by this provision, if the inhibition attaches the moment the member enters upon the discharge of his duties as such, and nothing is gained
by an earlier application of it.
The committee are, therefore, of opinion that the
reasons in which this constitutional provision originated, as well as its express language and the practice of the House under it, are in harmony with the
rule of law which existed before the formation of
the Constitution, that the acceptance and entering
upon the discharge of the duties of an office, which,
from the nature of its duties, or from express legal
or constitutional prohibition, is incompatible with another previously held, vacated the former office from
the time of such acceptance and entering upon the
duties assigned to the latter office.
12




178     ELIGIBILITY TO OFFICE. TENURE.
And, consequently, when a person elected to Congress accepts that office, or qualifies and enters upon the discharge of its duties, he vacates or forfeits
any office he may then hold under the United States.
And when any member of Congress, after he has
qualified or entered upon the discharge of his duties;as such member, accepts or enters upon the dis-.charge of the duties of "any office under the United:States," he, zilsofacto, vacates or forfeits his seat as,a member of Congress.
But this record raises another question which, so
far as the committee can learn, has not before arisen,
and which it becomes necessary to examine. Mr.
Blair was appointed a Brigadier General, August 7,
1862, and a Major General, November 29, 1862,
the duties of which latter office he discharged till
January 1, 1864, when he tendered his resignation,
which was accepted January 12, 1864. On this latter day he was qualified, and took his seat in the
House of Representatives. The first regular session of the thirty-eighth Congress, fixed by law,
commenced on the first Monday of December, 1863.
It therefore appears that Mr. Blair held and dis-,charged the duties of the office of Major General
for more than a month after the commencement of
the session fixed by law of the Congress in which,
after resigning that office, he subsequently took his
seat. Now, if the reasoning already submitted, and
the conclusions which the committee have drawn
therefrom, be correct, viz., that the acceptance of an
office incompatible with one already held must be
deemed and treated as a resignation of the former,
then does it not follow that the continuance in the




ELIGIBILITY TO OFFICE. TENURE.     179
discharge of the duties of the former office, after
the time at which the law requires the entering upon
and discharge of the incompatible duties of the latter, must be deemed and treated as a declination of
this office? If two offices are tendered at the same
time to the same person, and he is at liberty to
choose between the two, but either the nature of the
offices, or the requirements of the law or Constitution, forbid the acceptance of both, no one will doubt
but that, after an election between them is made and
the duties of one have been entered upon, it is too
late then to take the other. As both cannot be
taken, the one is declined in the acceptance of the
other. Does the fact that these two offices are tendered at the same time, make any difference in the
principle? A man in the discharge of the duties of
one office is tendered another, whose duties he is required to enter upon at a certain time, but the functions of both he cannot perform. When the time
arrives at which the duties of the latter office commence, he is at liberty to choose. If he takes the
latter, the functions of the former, ipsofaclo, cease
as the result of his choice. If he determines to continue to hold the former, does he not of necessity
decline the latter, as a like result of that choice?
When he accepts one office, the law interprets the
act as a surrender of any incompatible office. Shall
it not put a like interpretation upon a continuance
to discharge the duties of the other? If he may be
permitted to keep vacant the one office one month
by continuing in the incompatible one during that
time, he may two or twelve, or during its whole
term. If those acts are not to be taken as an elec



180     ELIGIBILITY TO OFFICE. TENURE..
tion on his part, then that election is yet to be made;
and what interposes to require it to be made till the
day before the term expires, or then? And thus
may the people of any district, or any number of
districts, be deprived altogether of representation.
The committee cannot arrive at any conclusion
fraught with such results, but are of opinion that,
when the time arrives at which the duties of two incompatible offices are by law to be discharged, a
man at liberty to choose between the two, as effectually declines one not entered upon, by continuing
in the one already held, as he would vacate the
former if he did enter upon the latter.
It therefore follows that Mr. Blair, by voluntarily
continuing to hold and discharge the duties of the
office of Major General till January, 1864, declined
and disqualified himself for the office of representative, the duties of which, by law, commenced on the
first Monday of the December preceding."
~ 243. A person who held a federal office after
being elected to Congress, but who had ceased to
discharge its duties before taking his seat as a member of Congress, is qualified for the latter office
without having formally resigned the former.(Case of George Mumford, UC.     If. 316.)  And
there can be no doubt, but that the accepting of the
office of Representative in Congress and entering
upon the discharge of its duties, amounts to a resignation and abandonment of any incompatible office
previously held, and hence a formal resignation is
not necessary in any such case.
~ 244. As early as the year 1791, it was decided
in the lower House of Congress that a member of




ELIGIBILITY TO OFFICE. TENURE.     181
that body may tender his resignation to the Governor of his State, and that such Governor may
issue a writ for a new election, without any notice
to, or action by the House of Representatives.
(Case of 7yohn. Mercer, C/ark & Hall, 44.  Case
of Benj. Edwards, Ibid, 92.)  The constitution provides that, "when vacancies happen in the representation from any State, the executive authority thereof
shall issue writs of election to fill such vacancies."
(Const. Art. 1. Sec. 2.)  It is now well settled that
the consent of the House is not necessary to the
resignation of a member. The right to resign is absolute, and may be exercised even by a member
when under charges, or pending a resolution for his
expulsion.  (Case of Matteson, 381h Congress, and oJ
Whiktemore, forty-first Congress.)  Such being the
law, it is of course not essential to the validity of a
resignation that it be addressed to the House, or to
its Speaker. If addressed to the Executive of the
State, it is sufficient, and creates a vacancy for the
filling of which he may issue a writ in accordance
with the law of the State. It is however highly
proper, that the House be informed of the resignation of one of its members, at the earliest moment
practicable, and if the House be in session at the
time of such resignation, it is the uniform custom,
for the member resigning to address a letter to the
Speaker, informing him and the House of the fact,
that he has sent his resignation to the Executive of
the State.
~ 245. Where the qualifications required for office
are "a residence in the State of one year" and that
one shall be "a citizen of the United States," if a




182     ELIGIBILITY TO OFFICE. TENURE.
person elected has resided in the State for the time
required it is not essential that he shall hae been
a citizen during the whole of that time; it is sufficient if he were naturalized at the time of the election. "It is not the citizen who is required to have
resided in that quality for one year next preceding
the election. It is the person, the individual, the:
man, who is spoken of, and who is to possess the
qualifications of residence, age, freedom, &c., at the
time he offers to vote, or is to be voted for."  (Biddle vs. Richard, Cl. & H., 407.)
~ 246. The constitution, Art. 1, Sec. 3, provides,.
"no person shall be a Senator who shall not have attained the age of thirty years and been nine years
a citizen of the United States, and who shall not
when elected be an inhabitant of the State for which
he shall be chosen." Mr. Shields of Illinois, who
was an alien by birth, and who was elected Senator
before he had been a citizen of the United States
the term of years required, was held not entitled to
a seat under said election. Such an election is entirely void.  (Case of 7ames Shields, 1 Bartlett, 606.)
~ 247. A member of the Senate of the United
States holding the office under executive appointment, has a right to occupy his seat until the vacancyis filled by the State legislature and the credentials
of the person so elected are presented to the Senate.
(Case of Winthrop, 1 Bartlett, 607.)
~ 248. Art. 1, Sec. 3, of the constitution provides,,
that if vacancies happen in the Senate of the Un;ted
States, "by resignation or otherwise during the reces,
of the legislature of any State, the executive thereof
may make temporary appointments until the next




ELIGIBILITY TO OFFICE. TENURE.     183
meeting of the legislature, which shall then fill such
vacancies."  In the case of RPeips of Vermont, (1
Bartlett, 613,) it was held that an executive appointment made to fill a vacancy expires with the adjournment of the next session of the legislature of the
State, after such appointment is made, so that if the
legislature meets after such appointment is made
and adjourns without electing a Senator, the seat becomes vacant. The appointee of the executive cannot hold over after the failure of the legislature to
elect. The language of the constitution "until the
next meeting of the legislature" was construed to be
equivalent to the words, "until the next session" &c.,
and the appointee was held entitled to hold the seat
until the adjournment of the legislature without
action, when his term of service was held to have
expired. The case of Senator Phelps, in which these
propositions may be said to have been finally settled,,
was decided by the Senate after full discussion, and
against the majority of the judiciary committee and
sustaining the views of the minority. This minority
report has become the law of the Senate upon the:
subject. It is an able and exhaustive discussion of
the whole subject, and contains a citation of all the
precedents. It will be found in 1 Bartlett, pages
613 to 618 inclusive.
~ 249. It will be seen by reference to the constitution of the United States, Art. 1, Secs. 2 and 3,
that no person can be a Representative " who shall
not, when elected, be an inhabitant of the State in
which he shall be chosen," and that no person shall
be a Senator who shall not, "when elected, be an
inhabitant of that State, for which he shall be




184     ELIGIBILITY TO OFFICE. TENURE.
chosen." The meaning of the term inhabitant, as
employed in these provisions, has been somewhat
discussed. That it was intended to express something different from the word resident, is apparent
from the fact that the latter word was in the original
draft of the constitution, and was stricken out by
the convention, and "inhabitant" inserted.' It would
seem that the framers of the constitution were impressed with a deep sense of the importance of an
actual bona fide residence of the representative
among the constituency-a residence in the sense
of actual living among them and commingling with
them,-and therefore employed the term inhabitant
in the sense of living or abiding, and not in the
sense of technical residence. This view of the subject was sustained in an elaborate report made to
the House of Representatives, in 1824, in case of
7ohn Bailey of Massachusetts, who was elected a
Representative from that State while he was a. clerk
in the Department of State, at Washington, D.
C., and temporarily residing in that city while in the
discharge of his official duties. He was held not
entitled to the seat. (Clark & Hall, 411.)  The
conclusion reached in that case was that an inhabitant of a State, within the meaning of these clauses
of the constitution, is one who is bonafide a member
of the State, subject to all the requisitions of its laws,
and entitled to all the privileges and advantages
which the)y confer.
~ 250. The case of one who is abroad, representing the government at a foreign Court, was held to
be different from that of a person employed in the
domestic service of the government, out of the limits




ELIGIBILITY TO OFFICE. TENURE.    185
of his own State. The foreign representative carries with him the sovereignty of the government to
which he belongs; his rights as a citizen are not impaired by his absence; children born in the house
he occupies, are considered as born within the territory and jurisdiction of the government in whose
service-he is; he does not possess the capacity by
residence in the foreign country, to become one of
its citizens, or to lose his allegiance to the country
from which he comes. None of these things attach to those persons who are employed in the home
service of the government. It was accordingly held
by the Committee of Elections, in the case of 7okn
Forsyth of Georgia, (Cl. e H., 497,) that a person
can be chosen a Representative in Congress while
absent from the country, as a minister to a foreign
Court, and that this case did not conflict with the
case of John Bailey, supra.
~ 251. Where the constitution of a State authorizes the Governor to fill vacancies that may happen
in certain offices during the recess of the Senate, by
granting commissions, &c., such Governor has no
power to create a vacancy by a declaration that one
exists, and granting a commission to fill it. The
decision of the Governor in such a case that a vacancy exists, is not conclusive as to the rights of
others, and if, upon a judicial investigation, by a
Court of competent jurisdiction, it is determined
that no vacancy existed, the appointment by the
Governor is void, and must be set aside. (Page vs.
Hardin, 8 B. Mon., 648.)  The judiciary must,
where individual right is involved, decide upon the
legality of an act of the Supreme Executive power,




186     ELIGIBILITY TO OFFICE. TENURE.
as well as upon the validity of legislative acts...
(Ibid.)
~ 252. Where the constitution prescribes the
qualifications for an office, the legislature cannot
add others not therein prescribed. It was accordingly held, that where the constitution provided that:
"all civil officers of the commonwealth at large shall
reside within the State, and all district, county or
town officers within their respective districts," it was.
not competent for the legislature to require the Secretary of State to reside at the seat of government.
(Ibid.) In the same case it was further held that,
by the common law, ministerial officers may generally appoint deputies to act in the name and place of
the principal, and whose acts within the scope of
their appointment, will be held valid.
~ 253. An office may be abandoned by removal
from the State, county or district to which the officer
is restricted by the law of his office; or by accepting an incompatible office; or by the relinquishment
of any express qualification; or by the assumption
of any absolute disqualification, or by resignation,
(Ibid.)
~ 254. Where an officer is commissioned for a
certain term of years "if he shall so long behave
himself well," he cannot be removed for misbehavior without notice and a trial. The conviction of
misbehavior in our government implies a right to
notice, defense, and proof, on the part of the officer,.
and is a judicial question. The executive, therefore, cannot determine that the Secretary of State,
or any other officer, holding during good behavior,




ELIGIBILITY TO OFFICE. TENURE.     187
has been guilty of misbehavior and thereupon re —
move such officer. [Ibid.]
~ 255. The doctrine of Page vs. Hardin, was approved and adopted by the Supreme Court of New
Jersey, in the recent case of The Slate vs. Prichaard
and others, (Am. Law Register, ezew Series,) Vol. 12,
p. 514.) And in this latter case the Court went further, and held that even if the incumbent of an
office be convicted of an infamous crime, this does
not, zpsofacto, work such a forfeiture of his office as
to make it vacant. It was determined that in the:
absence of any statute expressly declaring that such
conviction shall create a vacancy in the office, it is
not within the power of the executive to give it this.
effect, and to appoint a successor to the person convicted. The right to remove a public officer for
misbehavior in office does not appertain to the executive, but such is a judicial act, and belongs to a
Court,-in New Jersey to the Court of impeachments. Because the conviction of an officer of an
infamous crime deprives him of the right to testify
as a witness and of the right to vote, it does not
follow that it also deprives him of his office. Says
the Court in the case just cited:  "Because as a
punishment the law has denounced a loss of two of
the rights of citizenship, it does not follow that a
third right is to be withheld from the delinquent.
Indeed, the reverse result is the reasonable deduction, because it is clear on common principles that
no penalty for crime but that which is expressly
prescribed, can be exacted. The fact that severe
penal consequences are annexed by statute to the
commission of a breach of law, cannot warrant the




188     ELIGIBILITY TO OFFICE. TENURE.
aggravation by the.judicial hand of the punishment
prescribed." It may not be out of place here to remark, that while the law is no doubt as laid down in
the case just cited, it would, as the judge delivering
the opinion clearly intimates, be well for the legislatures of the several States to provide by statute
that the conviction of a public officer of any official
delinquency, or of the commission of any infamous
crime, shall ipsofaclo work a forfeiture of his office,
and that the record of such conviction by a Court of
competent jurisdiction shall be sufficient to authorize
the proper authority to declare and to fill the vacancy. For it is plain that in the absence of such
legislation, according to the law which seems well
settled, a convicted felon may, for a time at least,
continue to exercise the functions of a public office,
unless indeed by imprisonment, he be deprived of
the power to do so.
~ 256. The constitution of Kentucky provides,
that "any person who shall after the adoption of this
constitution, either directly or indirectly, give, accept,
or knowingly carry a challenge to any person or
persons to fight in single combat with a citizen of
this State, with any deadly weapon, either in or out,of the State, shall be deprived of the right to hold
any office of honor or profit in this commonwealth,
and shall be punished otherwise in such manner as
the. General Assembly may prescribe by law." It
has been held by the Board for the determination of
contested elections in that State, that this constitutional provision does not require a conviction of the
crime of giving, accepting or carrying a challenge
in order to disqualify the offender. [Cochran vs.




ELIGIBILITY TO OFFICE. TENURE.     189
7ones, 14 Amn. Law Reg. N. S., 222.]  It was held
in this case that under the constitutional provision
above quoted, the doing of any of the acts named
therein, disqualifies the person so acting for any
office of honor or profit under the State, besides
subjecting him to such punishment as may be prescribed by law. That the disqualification and the
offence against the laws are separate subjects, and
that the contested election board has jurisdiction to
decide the former, without reference'to the latter.
This decision is based upon the theory that the constitution does not declare the giving, accepting or
carrying a challenge, a penal offence: that it does not
make these acts crimes, but simply prescribes as
among the qualifications for office, that persons who
have so acted shall not be eligible. This view is ably
supported in the opinion, and yet its soundness is
somewhat questioned by the author of the note to
the case, published with the report supra. The question presented is, [and it is one not free from doubt]
whether the disqualification of duelists under the
constitution of Kentucky is a punishment. If it be
in the nature of a punishment for a penal offence,
then a judgment of conviction by a court of competent jurisdiction, would be necessary to enforce it.
The better opinion, however, would seem to be that
the constitutional provision in question was designed
to execute itself; that it was not to be left to the
legislature to provide by statute for the indictment
and punishment of persons guilty of dueling before
such persons could be excluded from holding office,
and that the board, for the determination of contested elections, had therefore jurisdiction to inquire




190      ELIGIBILITY TO OFFICE. TENURE.
whether the claimant for office before them had done
any of the acts, which, if done, would render him
ineligible. It would seem to be a rule admitting of
but few  exceptions, that a tribunal clothed with
power to try the title to an office, must be permitted
to inquire into the ]ualzbfcations of all claimants, and
-to ascertain and consider all such facts as relate to
-the question of eligibility. This view of the constitutional provision above quoted, is strengthened
by the consideration that the same constitution in
which it is found, imposes a number of disqualifications, in respect to some of which a convictlon is in
terms required, and in respect to others no previous
conviction is made necessary,-the disqualification,on account of dueling being of the latter class.
Thus it is provided that "every person shall be disqualified from holding any office of profit or trust
*    *    8    who shall be convicted of having
given or offered any bribe or treat to secure his election." The argument is, that the requirement of
conviction was inserted with respect to some acts.and omitted as to others, by the framers of the constitution, for a purpose, and that purpose must have
been to dispense with the necessity for a conviction
-in the cases where it is not in terms required. (h)
~ 257. It seems that the power given by the con-,stitution of the United States to the executive of
any State, to make temporary appointments to fill
vacancies which may happen during the recess of
the legislature, does not empower such executive to
anz'cifpate a vacancy, and make an appointment to
(hI) But see decision in same case by court of appeals of Ky. r4 Am.
-Lazv Reg., 373.




ELIGIBILITY TO OFFICE. TENURE.     191
fill it, before it happens. (Case of 7ames Lanman,
C. & H., 871.)  Such appears to have been the
ground upon which Mr. Lanman was refused a seat
in the Senate, although it does not very clearly appear, either from the report of the committee or the
debate in the Senate, what were the reasons for the
decision. The record, however, discloses no objection to the validity of the appointment, other than
the fact that it was made before the vacancy happened. And in the course of the discussion of a
subsequent case in the Senate, (that of Pottller vs.
Robbins,) this case was frequently referred to as
having been decided upon the ground above stated.
In the latter case Mr. Bibb, Senator from Kentucky,
said, referring to the case of Lanman: "The Governor had thought fit to appoint Mr. Lanman to a
vacancy which would occur, not one which had occurred. This (the Governor's) act was consequently
declared void."  (See Cl. e h., 886.)
~ 258. As we have seen, the question of eligibilty
to be elected to, or to hold an office, is generally to
be determined by the construction of some statutory
or constitutional provision, fixing the qualifications
therefor. But cases have arisen where both the
constitution and statute are silent. Thus in Wisconsin there is no statutory or constitutional provision to determine whether an alien may be elected
to or hold office. In S/ate vs. Smith, (14 Wis., 497,)
the question arose whether an alien could hold the
office. of sheriff. In that case the defendant was an
alien, and had entered upon the discharge of the
duties of his office, without having become an elector, which he might have done by declaring his in



192     ELIGIBILITY TO OFFICE. TENURE.
tention to become a citizen. Up to the time of the
commencement of the action he had not become a
voter, so that the case presented simply the question
of the right of an alien, not a voter, to hold the
office. The Court held that he could not hold it,
and the decision was put upon the ground that a
person cannot lawfully hold such an office unless he
is a qualified elector of the State. The Court, by
Dixon, C. J., said:  "It is an acknowledged principle which lies at the very foundation, and the enforcement of which needs neither the aid of statutory or constitutional enactments or restrictions,
that the government is instituted by the citizens for
their liberty and protection, and that it is to be administered, and its powers and functions exercised
by them, and through their agency."  This case,
however, went no further than to hold that a person
not an elector, is ineligible, in the absence of any
statutory or constitutional provision on the subject,
to hold an office. It left open the question whether
a person not an elector, may, in the absence of such
statutory or constitutional provision, be elcted to an
office, and be entitled fo enter upon and discharge
its duties, provided his disability is removed before
the commencement of the term, for which he is
elected. This latter question, however, did arise in
the same State, in the more recent case of State vs.
M]urray, (28th Wis., 96,) and was decided affirmatively. In this case the distinction is clearly made
between ineligibility to hold an office, and ineligibility to be elected to an office for a term to commence in the future, and for the duties of which the
person chosen may qualify himself before the term




ELIGIBILITY TO OFFICE. TENURE.      193
begins.  It may here be added that it has been the
constant practice of the Congress of the United
States since the rebellion, to admit persons to seats
in that body who were ineligible at the date of their
election, but' whose disabilities had been subsequently removed.
~ 259. Where the constitution of a State fixes
the tenure of an office at four years, an act of the
legislature of such State providing for an election
to that office, and limiting the term of the person to
be elected, to two years, is void, in so far as it relates to the length of the term. But in other respects it is constitutional and valid, and the. person
chosen under it will be entitled to hold the office for
the constitutional term of four years. (Westbrook
vs. Roseborougk, 14 Cal.. 180.)
~ 260. Where the law requires an officer resigning to do so by a written resignation, to be sent to
the governor, it is not necessary that the governor
should signify his acceptance of a resignation to
make it valid. The tenure of office, in such a caseY
does not depend upon the will of:the executive, but
of the incumbent. A civil officer has the absolute
right to resign his office at pleasure, and it is not
within the power of the executive to compel him to
remain in office. [People vs. Porter, 6 California,
26. And see also 1, McLean's Reports, 512.]
~ 261. The Constitution of Kansas provides, that
"in case of any vacancy in any judicial office, it shall
be filled by appointment by the Governor, until the
next regular election that shall occur more than
thirty days after such vacancy shall have happened."
Where the Governor acting under the power here
13




194     ELIGIBILITY TO OFFICE. TENURE
conferred, to fill a vacancy, appointed a person to
the office of Justice of the Peace, made vacant by
the resignation of the incumbent, it was held that
the person appointed could hold only until the first
election thereafter, which occurred more than thirty
days after the happening of the vacancy, and if that
election occurred before the expiration of the original term, the person chosen thereat could hold only
for the remainder of the original term. Where the
law fixes the term of an office, and provides when
it shall be filled, as, for example, at the regular election in each alternate year, the term is not affected
by the death, resignation or removal of the incumbent. The regular election for the full term must
take place precisely as if no vacancy had occurred.
The recitals in a certificate of election, as to the duration of the term, are at best but primafacie evidence of such duration, and can always be overthrown by competent testimony. It has been therefore held that where a person was elected at an
election occurring in the middle of the original term
of two years, the fact that he received a certificate
declaring that he was chosen for two years, made
no difference as to his rights.  (Hale vs. Evans, 12
Kansas, 582.)
~ 262. It is essential to the validity of an election
to office, that it be authorized by some statute in
force at the time. By a statute of California it was
provided as follows; "Harbor commissioners are
elected and appointed, and hold their office as prescribed in the title VI, of part III, of this code." On
referring to that portion of the code it was discovered that no provision for such election had been




ELIGIBILITY TO OFFICE. TENURE.      195'made. It was accordingly held that where a Harbor
commissioner resigned the office, no successor could
be chosen by the people, until the passage of a law'to authorize them so to do. It was further held that
inasmuch as the Governor had power to fill all
vacancies, the person appointed to fill the vacancy'.in the office of Harbor commissioner, occasioned by
the resignation of the incumbent, would hold until
the next legal or authorized election by the people.
~(People vs. Matthewson, 47 Cal., 442.)
~ 263. In State vs. zones, (19 Ind., 359,) the following propositions were laid down:
1. "Where it appears prima facie that acts or,events have occurred subjecting an office to judicial,declaration of being vacant, the authority authorized
to fill such vacancy, supposing the office to be vacant,:may proceed before procuring a judicial declaration.of the vacancy, and appoint or elect, according to
the forms of law, a person to fill such office; but if,
when such person attempts to take possession of
the office, he is resisted by the previous incumbent,.he will be compelled to try his title and oust such'incumbent, or fail to oust him in some mode prescrib-,ed by law.
2. If such elected or appointed person finds the,office in fact vacant, and can take possession uncontested by the former incumbent, he will be officer de
facto, and should the former incumbent never appear
to contest his right, he will be regarded as having
been an officer defacto and dejure; but should such
former incumbent appear after possession has been
taken against him, the burden of proceeding to oust
the then actual incumbent will fall upon him, and if




196       PRACTICE AND EVIDENCE IN
in such proceeding it is made to appear that facts
had occurred before the appointment or election,
justifying a judicial declaration of a vacancy, it will
be then declared to have existed and the election or
appointment be held to have been valid."
And it is doubtless true as here stated, that no judicial declaration of a vacancy is absolutely necessary, and that if a vacancy in fact exists, the proper
authority may fill it. But where the whole body of
the electors constitute the proper authority to fill a
vacancy, if they proceed upon the idea that its existence is a matter of general notoriety, and without
any notice or proclamation of the same, it must appear that it was notorious and that the whole body
of the electors, or at least the principal part of them
were aware of it, and took part in the election to fill
it, or had an opportunity to do so.
CHAPTER VI.
PRACTICE AND EVIDENCE IN CONTESTED ELECTION CASES.
~ 264. At common law the proper remedy against
a person claiming to exercise an office, and who was
believed to be not entitled thereto, was by the writ
of quo warranto, which was issued upon proper application for the purpose of inquiring into the authority of such person, and ousting him from such
office, in case no authority should be shown. In
modern practice an information in the nature of a




CONTESTED ELECTION CASES.       197
quo warranto, is resorted to, in the absence of any
statutory proceeding.  (W alker's American Law, p.
566. Biackstone's Comm., Vol. 3.p. 263.)  And in
fact where there are special proceedings authorized
by statute, they partake of the nature and retain
most of the substance of the common law proceeding by quo warranto.
~ 265. According to the common law of England
the information was filed in the Court of King's
Bench, by the Attorney General. In this country
it should'be filed by a law officer of the government,
and presented to a Court having the necessary common law jurisdiction. The proceeding was originally of a quasi criminal character, being intended
to secure the punishment of the usurper by a fine
as well as to oust him, or seize the office or franchise for the crown. But "it hath," says Blackstone,
"long been applied to the mere purposes of trying
the civil right, seizing the franchise, or ousting the
wrongful possessor; the fine being nominal only."
~ 266. In an information setting forth that the
respondent has usurped an office which is claimed
by other persons, their claims should be set forth,
and the judgment may order the ouster of the
usurper, as well as the admission of the rightful
claimant., (Gaud vs. The Stae,'10 Ohio State, 237.)
Leave of Court must be had to file an information
of this character, under the common law, though
the Attorney General of England it seems might
file it at his will. (4 2Blackstone, 311.)
~ 267. On the trial of a contested election before
a board or legislative body, the members returned
as elected are not competent to vote upon the ques



198        PRACTICE AND EVIDENCE IN
tion of the validity of their own election. (Cornmonweallh vs. McKioskey, 2 Rawle, 369. Brightley's;
Election Cases, 196.) This rule grows out of the
doctrine that no man should have a voice in deciding
his own case. At common law it is held that even,
an act of parliament cannot require anything so re —
pugnant to natural justice, as that the same person
may be a party and a judge.  (Davy vs. Savadge,
Hobarl, 87, 12 Mad., 687.)  Out of this principle:
grows also the parliamentary rule which forbids a.
member of a parliamentary body to vote upon any
question in which he is directly interested. The:
Court in Commonwealth vs. McKloskey, supra, does.
not put it too strongly when it says "for a man to
constitute himself a judge in his own cause is indelicate and indecent."  To the same effect are the following authorities: Rice vs. Foster, 4 Harringlon,
485.  Carson's Case, 2 Lloyc's Debates, 23. Stock —
ton's Case, U. S. Senate, Cong'l Globe, 1865-6-page.
1635.  Cushing's Election Cases, 97.
~ 268. It is true that the Senate of the United;
States permitted Hon. B. F. Wade, Senator from
Ohio, to sit as one of the judges for the trial of Andrew Johnson, President of the United States, upon
articles of impeachment, and that he voted upon
the same, notwithstanding the fact that being President pro temjpore of the Senate, and ex-officio Vice
President of the United States, he would have become President, had the President been convicted.
(2, /ohnson's trial, 486-7, 496, 3 ibid, 360.)  The
question of Mr. Wade's right to be sworn as a mem —
ber of the Court of impeachment was raised by Sen —
ator Hendricks of Indiana, and was debated at some




CONTESTED ELECTION CASES.       199
length, and then withdrawn, so that it was not formally decided. If, however, it had been decided in
his favor, it could only have been upon the ground
that it did not come within, or that it constituted an
exception to, the rule we have stated. It was contended that the State of Ohio, in the person of her
two Senators, had a right to be heard in the decision of the great case of impeachment then pending, notwithstanding the contingent interest which
one of the Senators had in the result, and that the
importance of giving to each State an equal voice in
that decision, was sufficient to justify what was at
least an apparent departure from, or an exception
to, that rule.  Whatever may be thought of the
soundness of this argument, it is sufficient for our
present purpose to say that it does not involve any
question as to the soundness of the general rule,
that no man shall be a judge in a matter in the decision of which he is directly and personally interested.
~ 269. In ex parle Murphy (7Cowen, 153,) it was
held that the mere circumstance that improper votes
were received at an election will not vitiate it. In
that case, one candidate had received a majority of
two votes, and it was charged that two illegal votes
were cast, but there was no allegation that they
were cast for the candidate having the majority.
The motion for quo warranto was denied, the Court
saying, "For all that appears the spurious ballots
were for the ticket which was in the minority." This
ruling, however, should be explained and probably
qualified. If it goes no further than to hold that the
information in that particular case was insufficient to




200        PRACTICE AND EVIDENCE IN
warrant the allowance of a quo warranlo, it may be accepted as correct, but, if it is construed as asserting
the doctrine, that in all cases it is necessary to show
that the person declared elected was, in fact, defeated, before the election can be set aside, then it goes
too far. An election may be set aside, declared
void, and a new election be ordered, upon the introduction of such proof as renders it impossible to determine who has been chosen by a fair majority, but
the contestant can, in no case, be declared entitled
to the office until he shows, affirmatively, that he has
received a majority of the legal votes cast.
~ 270. It often appears in the course of the trial
of a case of contested election that votes have been
cast by persons not qualified to vote, and in such
cases it becomes very important to ascertain for
whom such votes were cast. A question of much
importance has arisen as to whether the declarations
of illegal voters made not under oath, should be received to show the fact that they voted, or that they
were not legally qualified to vote. The English authorities, though not entirely uniform, are generally
in favor of admitting such declarations, and perhaps
the weight of authority in this country is the same
way, though it cannot be denied that the tendency
in the more recent, and we think also the better
considered cases, is to exclude this evidence as
hearsay.  (State vs. Ohio, 23 Wis., 319.  The New
7ersey Case, 1 Bar/lett, 19.  Vallandigham, vs. Campbell, do 230, and cases there cited.)
~ 271. The soundness of the rule which admits
this species of evidence, is seriously questioned in
the late case of Cessna vs. Myers, 42d Congress. The




CONTESTED ELECTION CASES.        201
report in that case presents the following objections
to the rule 6.
"The general doctrine is usually put upon the
ground that the voter is a party to the proceeding,
and his declarations against the validity of his vote
are to be admitted against him as such. If this were
true, it would be quite clear that his declarations
ought not to be received until he is first shown, aliunde, not only to have voted, but to have voted for the
party against whom he is called. Otherwise it would
be in the powerofan illegal voter to neutralize wrongfully two of the votes cast for a political opponent:
1st, by voting for his owna candidate; 2d, by asserting to some witness afterward that he voted the
other way, and so having his vote deducted from
the party against whom it was cast.
But it is not true that a voter is a party in any
such sense as that his declarations are admissible
on that ground. He is not a party to the record.:His interest is not legal or personal.  It is frequently of the slightest possible nature. If he were a
party, then his admissions should be competent as to
the. whole case-as to the votes of others, the conduct of the election officers, &c., which it is well
settled they are not. Another reason given is, that
the inquiry is of a public nature, and that it should
not be limited to the technical rules of evidence established for private causes. This is doubtless true.
It is an inquiry of a public nature, and an inquiry
of the highest interest and consequence to the public, Some rules of evidence applicable to such an
inquiry must be established. It is nowhere, so far
as we know, claimed that in any other particular the




202       PRACTICE AND EVIDENCE IN
ordinary rules of evidence should be relaxed in the
determination of election cases. The sitting member is a party deeply interested in the establishment
of his right to an honorable office. The people of
the district especially, and the people of the whole
country, are interested in the question, who shall
have a voice in framing the laws? The votes are
received by election officers, who see the voter in
person, who act publicly in the presence of the people, who may administer an oath to the person offering to vote, and who are themselves sworn to the
performance of their duties. The judgment of these:
officers ought not to be reversed, and the grave interests of the people imperiled by the admissions of
persons not under oath, and admitting their own
misconduct.
The practice of admitting this kind of evidence orig-.
inated in England. So far as it has been adopted in
this country, it has been without much discussion of
the reasons on which it was found'ed. In England, as
has been said, the vote was viva voce. The fact that;
the party voted, and for whom, was susceptible of
easy and indisputable proof by the record. The
privilege of voting for members of Parliament was
a franchise of considerable dignity, enjoyed by few.
It commonly depended on the ownership of a freehold, the title to which did not, as with us, appear on
public registries, but would be seriously endangered
by admissions of the freeholder which disparaged it.
An admission by the voter of his own want of qualification was, therefore, ordinarily an admission
against his right to a special and rare franchise, and
an admission which seriously imperiled his title to his




CONTESTED ELECTION CASES.        203
real estate. An admission so strongly against the
interest of the party making it would seldom be made
unless it were true. It furnishes no analogy for a
people who regard voting, not as a privilege of a.
few, but as the right of all, where the vote, instead
of being viva voce, is studiously protected from publicity, and where such admissions, instead of having
every probability in favor of' their truth, may so easily be made the means of accomplishing great injustice and fraud, without fear either of detection or
punishment.
It may be said that the principle of the secret ballot protects the voter from disclosing how he voted,
and in the absence of power to compel him to testify and furnish the best evidence, renders the resort
to other evidence necessary.
"The committee are not prepared to admit, that
the policy which shields the vote of the citizen from
being made known without his consent, is of more
importance than an inquiry into the purity and result of the election itself. If it is, it cannot protect
the illegal voter from disclosing how he voted. If
it is, it would be quite doubtful whether the same policy should not prevent the use of the machinery of
the law to discover and make public the fact, in whatever way it may be proved. It is the publicity of the
vote, not the interrogation of the voter in regard to
it, that the secret ballot is designed to prevent,
There would seem to be no need to resort to hearsay evidence on this ground, unless the voter has
first been called, and, being interrogated, asserts his.
privilege and refuses to answer. Even in that case,.
a still more conclusive objection to hearsay testimo



204        PRACTICE AND EVIDENCE IN
ny of this character is this: it is not at all likely to
be either true or trustworthy.
"The rule that admits secondary evidence when
the best cannot be had only admits evidence which
can be relied on to prove the fact, as sworn copies
when an original is lost, or the testimony of a witness to the contents of a lost instrument. Hearsay
-evidence is not admitted in such cases, and is only
admitted in cases where hearsay evidence is, in the
ordinary experience of mankind, found to be generally correct, as in matters of pedigree and the like.
But a man who is so anxious to conceal how he voted as to refuse to disclose it on oath, even when the
disclosure is demanded in the interest of public justice, and who is presumed to have voted fraudulently-for otherwise, in most cases, the inquiry is of no
consequence-would be quite as likely to have made
false statements on the subject, if he had made any.
To permit such statements to be received to over-come the judgment of the election officers, who admit the vote publicly, in the face of a challenge, and
with the right to scrutinize the voter, would seem to
be exceedingly dangerous."
~ 272. In Newlandvs. Graham, (1 Barlet/t, 5,) the
declarations of voters made after the election, of
their having voted for the sitting member, were held
inadmissible, and were excluded, although it was
shown that, by the statute of North Carolina, where
the election took place, voters were not compellable
to give evidence for whom they voted. The Committee did not in their report state the ground of
their decision, but we may fairly presume that it was
held that an illegal voter could not refuse to answer




CONTESTED ELECTION CASES.       205
for whom he cast his vote, and shield himself under
the statute made to preserve the secrecy of an honest ballot, and that, therefore, since all such persons
can be compelled to state for whom they voted, they
should be called as witnesses, and their declarations
not under oath, should not be received.
~ 273. And again in the recent case of Gilliland
vs. Schueyler, (9 Kansas, 569,) it was held that statements of third parties as to the number of times
and the names under which they voted was hearsay
and incompetent. The Court said:  "It is the testimony of what other persons told the witness, persons not parties to the suit, so that their admissions
could be receivable. These declarations were not
made at the polls by persons conducting the election, and so as to make part of the res gestla; nor
do they accompany a principal fact, so as to qualify
orexplain it."  The Courtalso says: "We have examined the cases of People vs. Please, 27 AT. Y., 45,
Sltae vs. Olin, 23 Wis., 319, and the note to 3 McCord, 230, and so far as they enunciate any principle
contrary to the doctrine here announced we disapprove them."
~ 274. Where the statute required that the return
of the vote of each town should consist of a copy
of the town record, signed by the selectmen and attested by the clerk, it was held that a certificate
which did not on its face purport to be a copy of the
town record, and which was attested by James N.
Tilton, without anything to show that he was town
clerk, was void, and could not be received by the
canvassing board.  (Luce vs. Mayhew el. al., 13 Gray,
Mass. 83.) And of course if the proper officers




206        PRACTICE AND. EVIDENCE IN
omit altogether to sign a return, though it may be
otherwise formal, it is void, and proves nothing.
(Barnes vs. Adams, 2 Bartlett, 771.)
~ 275. Where the statute provides for a list of
voters to be prepared by the selectmen of a town
and used at the election, such list is to be regarded
as an official document, and is itself the best evidence upon the question whether the name of a
particular voter is upon it. It is therefore not competent for a party to show  by parol that his name
was on such voting list, without first giving notice
to produce the list.  (Harris vs. Granville, Whit-'comb, el. al., 4 Gray, Mass. 433..) And it was further held in the same case that the fact that a per-'son's name is on the voting list, is only prima facie
evidence of his right to vote, and the selectmen may:strike off the name and reject the vote, if they can
prove that he was not entitled to vote. See also
Humphrey vs. Clingman, 5 Metcalf; 168.
~ 276. A statutory, provision requiring notice of
contest to be given within a given time, from the:
date of the official count, or from the declaration of
the result, or the issuing of the certificate of election or the like, is peremptory, and the time cannot
be enlarged.  (Bowen vs. Hi-eon, 45 Mo., 340.)  " It
has always been held," says the Court in that case,
"that where the jurisdiction of a Court is made to
depend upon the time, either of giving notice or of
taking appeals, the requirement is peremptory."
And see also Castello vs. St. Louis Circuit Court, 28
Mo., 278. And it may be added that there is the
strongest reason for enforcing this rule most rigidly
in cases of contested election, because promptness




CONTESTED ELECTION CASES.        207
in commencing and prosecuting the proceedings, is
of the utmost importance to the end, that a decision
may be reached before the term has wholly, or in
great part, expired.
~ 277. Where, as is the case in several of the
States, the statute provides a mode of preserving the
identical ballots cast at an election, for the purpose
of being used as evidence in case of contest, such
statute, and particularly those provisions which provide for the safe keeping of such ballots, must be
followed with great care. The danger that after
the count is made known, (especially if the vote is
very close,) the ballots may be tampered with, is so
great, that no opportunity for such tampering can
be permitted. Such ballots, in order to be received
in evidence, must have remained in the custody of
the proper officers of the law, from the time of the
original official count, until they are produced before
the proper court or officer, and if it appear that.they
have been handled by unauthorized persons, or that
they have been left in an exposed and improper
place, they cannot be offered to overcome the official
count. See Gooding vs. Wilson, (42d Congress.)
Butler vs. Lehman, (1 Bartlett, 354.)   Kline vs.
Verree, (ibid, page 381.)  In Butller vs. Lehman the
House of Representatives, after a full discussion,
sustained the minority of the committee in rejecting
a recount, upon the ground that the ballot boxes had
not been so kept as to rebut a reasonable presumption, that they had been tampered with.
~ 278. In California there was a statute requiring
the preservation of the ballots in the clerk's office
for six months. In the same act was a provision re



208       PRACTICE AND EVIDENCE IN
quiring the preservation of the poll list and tally
paper, with the certificates of the officers attached.
Under this statute the case of People vs. HJoden,
281t California, 123, arose. The defendant in that.
case was returned as elected county judge by five
majority, and the relator as defeated by that number. Upon an inspection of the ballots cast at one
of the precincts and preserved in the clerk's office,.
under the law, it appeared that thirty-one democratic.
tickets had been cast, and that the name of Holden
was on all of them except two, from which as appeared upon inspection, his name had been torn off..
Several ballots containing Holden's name having
been thrown out for other causes, the case turned
upon the two ballots, from which his name had been
torn, and the question was whether the name was,
torn off after, or before, the'ballot was placed in the
box. There was no evidence upon this point and
the court held, that the presumption was that the
ticket had not been mutilated, and that the name had
been torn off by the voter before voting. The evidence consisted of the certified returns and poll list,
on the one hand, and the ballots on the other. Here
was a case of presumption against presumption.
The law presumed that the returns were correct, and
it also presumed that the ballots had not been tampered with. The temptation to tear the name of
Holden from a few tickets, and thus change theresult, was unquestionably very great, while it could
hardly have been supposed by the officers, who certified the township returns, that to change two or
three votes would change the result. The. soundness of the ruling is seriously doubted, by Mr..




CONTESTED ELECTION CASES.       209
Brightley, in his note to this case, [Brightley's Eleclion Cases, 484,] and it is quite certain that the precedent is quite an unsafe one. Before the ballots
should be allowed in evidence to overturn the official
count and return, it should appear affirmatively that
they have been safely kept by the proper custodian
of the law,-that they have not been exposed to the
public, or handled by unauthorized persons, and that
no opportunity has been given for tampering with
them. If this is believed to be a rule, founded upon
the presumption that a fraud or a crime has been
committed, the answer is that the rule does no more
than to make choice between two presumptions of
law, which in this instance come in conflict, and cannot both prevail. In such a case the question is,
which is the stronger, the more reasonable, and the
safer presumption? And inasmuch as the ballots
are counted by the board of canvassers, immediately
upon the closing of the polls, and generally before
there has been an opportunity for tampering, and
when it cannot be known that the changing of a
few votes will change the result, and in most cases
by a board composed of friends of each of the competing candidates, it is believed that in the absence
of all proof, in case of a conflict between the tally
sheets and returns on one side, and the ballots as
they are found to be at some period after the election is over, and after the state of the vote as returned has been made known on the other; the correctness of the original official canvass, made by
sworn officers at the time of the election should be
presumed.
~ 279. The case of Archer vs. Allen, (1 Bartlett,
14




210        PRACTICE AND EVIDENCE IN
169,) is another case in which there was a recount
of the ballots, after the official count had been made
and the result announced.  The official canvass'showed the election of the incumbent by a majority,of only one vote. The recount, which was made by.officers of the election, somefour months after the
day of election, resulted in the alleged discovery of,a mistake of two votes in favor of contestant, just
sufficient to change the result. The necessity for
proving affirmatively that the ballots had not been
tampered with, seems to have been felt and conceded by the contestant, and a good deal of testimony
was taken upon that point, enough, according to the
report of the majority of the committee, to make it
clear that the ballots counted at the second and unofficial canvass, were the identical ballots originally
deposited in the box. The minority of the committee, however, took the opposite view, and insisted
-that the proof of identity was insufficient.
After an elaborate debate in the House, the report of the majority declaring the incumbent not
duly elected, was adopted, but the resolution giving
the seat to the contestant was lost, and the seat
thereby became and was declared vacant.
~ 280. An application for a recount of the ballots
cast at an election, will not be granted unless some
specific mistake or fraud be pointed out in the particular box, to be examined. Such recount will not
be ordered upon a general allegation of errors in
the count of all, and giving particulars as to none
of the  boxes.  [Kansas Case, 2 Parsons, 599.
Thompson vs. Ewinzg, 1 Brewst., 67, 97.]  These
rulings were made in cases of applications to the




CONTESTED ELECTION CASES.        211
Court to order a recount of ballots.  Of course
such an order might be accompanied with proper
provisions for securing fairness and accuracy, and
the result might and would be rejected in case of
doubt as to the identity of the ballots, but before
ordering it the Court held that there must be
charges of mistake or fraud sufficiently precise to
induce the Courts to entertain the complaint, and
that a general allegation of errors believed to exist,
was not enough to authorize the perilous experiment
of testing the election return by the result of a recount.
~ 281. In Skerrel's Case, (2 Parsons, 509,) the
Court of Common Pleas of Philadelphia, had occasion to discuss the requisites of a petition to contest
an election. The statute of Pennsylvania provided
as follows: " That the returns of the elections under this act shall be subject to the inquiry, determination and judgment of the Court of Common
Pleas of the proper county, upon complaint in
writing, of thirty or more of the qualified electors of
the proper county, of the undue election or return
of such officer, two of whom shall take and subscribe an oath or affirmation that the facts set forth
in said complaint are true," &c. And it was held
that the complaint must set forth the facts with particularity and precision, and they must be such as if
true to render it the duty of the Court either to vacate the election or to declare another person than
the one returned, to have been duly elected. It
was further held that unless the petition be thus
verified and set forth facts that if true would have
changed the result, it will be quashed on motion.




212         PRACTICE AND EVIDENCE IN
No doubt it would also be held bad on demurrer..
There is no doubt as to the soundness of this ruling.
It is not desirable to encourage groundless or frivolous contests. If the complainants have a solid basis for their complaint, they can readily specify the
facts upon which they rely, and if they have not such
solid basis, it is better that they be not permitted to
proceed. "The true rule," says King P. J., in Skerret's case, supfra, "regulating  such proceedings,
should be defined so as to advance on the one hand,,
substantial and meritorious, and to arrest on the
other, futile and querulous complaints." It is not
sufficient to state generally that A. received a majority of votes while the certificate was given to B.,
and therefore the complainants charge that there
was an undue election. This is but a conclusion,,
and it is not for the pleader to state conclusions but
facts, from which the Court may draw conclusions.
If fraud is alleged, the petition must state the manner in which the fraud was effected, and the number
of votes fraudulently received or fraudulently rejected."  Upon this general subject see Carpenter's
Case, 2 Parsons, 537. Lelar's Case, 2 Parsons, 548.
Kneass' Case, 2 Parsons, 553.
~ 282. Where some of the grounds set out in the
petition are mere irregularities, which, if sustained
by proof, would not vitiate the election, they will be
stricken out on motion, and the respondent will not
be put to the trouble of taking proof to rebut them.
Kneass' Case, supra, and see Balturs vs. Megary, 1
Brewst., 192. And it is not necessary to give the
names of the persons who are alleged to have voted
illegally.  (Gibbons vs. Sheppard, 2 Brewst., 2, 65 Pa.
St. R., 36.  Ba/lurs vs. Megary, 1 Brewsl., 162.)




CONTESTED ELECTION CASES.       213
~ 283. It was held by the Supreme Court of Penn-:sylvania, in Gibbons vs. Sheppard, supra, that certainty to a common intent is all that is required, and
that some of the rulings above referred to were too
stringent; that the rule must not be held so strictly
as to afford protection to fraud, by which the will of
the people is set at naught, nor so loosely as to permit the powers of sworn officers chosen by the people, to be inquired into without well defined cause.
(65 Pa. SI. R., 36-7.)
Undoubtedly the same rule should be applied to
a pleading of this character that is applied to all
other similar pleadings. It should state in a legal.and logical form, the facts which constituted the
ground of the complaint; nothing more is required;
nothing less will suffice.
~ 284. In most of the States of the Union, there:are statutes to regulate pleadings under which
Courts are authorized to allow amendments where
petitions or other pleadings are found to be defective, and under most of these statutes a petition in,a contested election case may be amended. And in
the absence of any statute of this character, the
Court trying a case of contested election may, un-,der its general common law power, permit such a
petition to be amended. And an amendment ought
to be allowed whenever the Court in the exercise of
a sound discretion shall be of opinion that the ends,of justice will be thereby promoted. (Kneass' Case,:2 Parsons, Phziadelphia, 553. BrighlZey's Election
Cases, 337.)
~ 285. There is, however, a very strong reason
for requiring any such amendment to be made in



2-14        PRACTICE AND EVIDENCE IN
slanter, and for bringing an election case to a prompt
and,speedy trial and determination, and it is this.
The subject matter of the controversy is daily growing less, and of less importance and value. The
office in question is usually for a short term  of one
or perhaps several years only, and if the " laws delays" are to be allowed in these as in other cases,
the term would often expire before a decision could
be reached. And if an amendment of a petition
would necessarily result in a continuance, or in considerable delay, it ought not to be permitted, because it is better that he whose fault it is that the
original petition is insufficient should suffer, than
that an innocent party should be deprived of his
right to a speedy trial. In such a case the furtherance of justice requires that leave to amend should
be refused.  See also Gibbons vs. Sheppard, 65 Pa,
St. R., 20, 35.  Mann vs. Cassiday, 1 Brews!., 32.
Thompson vs. Ewing, ibid, 68, 97, 101.
~ 286. Where an election district is composed of
several sub-divisions or voting precincts, a failure of
the officers of one of such sub-divisions to make a
return, no matter from what cause, will not invaliddate the election unless it be shown that the votes
not returned would have changed the result. It was
so held by the Supreme Court of New York, in ex
parne, Heath and others, (3 Hill, 42,) which was a
case involving the validity of an election of ward
officers in the sixth ward of the City of New York.
The ward was composed of four districts, from three
of which the returns were regular, but as to the remaining ward (the first,) the inspectors certified
thus:  "It is impossible for us to declare what per



CONTESTED ELECTION CASES.        215
sons were by the greatest number of votes elected,
by reason of lawless violence committed upon the
inspectors of the first district, &c., and the dispersion of the ballots before they were counted, &c."
There was no evidence to show that votes not returned from the first district would have changed
the result as shown by the returns from  the other
three, and accordingly it was held that the persons
receiving the highest number of votes as shown by
the returns from the three districts, were entitled to
qualify; and a mandamus was granted, commanding
the Mayor to administer the oath of office to them.
In the course of his opinion in the case, Cowan J.
says, "In no case we are aware of has it ever been
held that the accidental loss of the ballots in a sin;
gle sub-division of an election district, even though
it prevent a return, shall, of itself, defeat, or indeed
detract from the election as it stands on the votes
which are properly returned. Once admit the principle that the loss of a part of the votes out of the
number which may or should be given at an election, avoids the whole, and it is difficult to conceive
how a system of government so entirely elective as
ours, could be carried on. That a part of the votes
given are lost, is never allowed per se, even in a private corporate election, as a ground for setting theelection aside. It is not enough to say the result is
therefore uncertain.  (Ex parle Murphy, 7th Cowan,
153.) Yet the contrary rule would be much more
tolerated in the case of private corporations than in
that of large municipal and civil divisions. To give
the loss any effect, it must at least be shown that
without its happening the result would have been




216        PRACTICE AND EVIDENCE IN
different.  The People, ex rel, O&c., vs. Vail, 20 Wend.,
12."
~ 287. In all legislative bodies which have the
power to judge as to the election and qualification
of their own members, the rule is well settled that
when the right of the sitting member is called in
question, the body will look beyond the certificate of
the returning officers, and determine the question
upon the actual merits. The certificate is primafacie evidence only in such a controversy. The rule
is the same in the Courts, and in trials of contested
election cases before a jury.  (The People vs. Vail,
20 Wend., 12.)  But it is, as elsewhere shown,
equally well settled, that the returning board or officer whose duty it is to open returns, ascertain the
result, and issue commissions, cannot go behind the
returns. And if a party wishes to go behind the
returns and set them aside, he must in his pleading
make specific allegations, showing wherein they are
false.  (Stale ex rel vs. Tozwnsley, 56 Mo., 107.)
~ 288. Under the statute of Pennsylvania, conferring jurisdiction upon the Court of Quarter Session, to hear and determine election contests, and
making its decision final and conclusive, it was held
that an issue to a jury could not be directed to try
the question of an alleged fraud in an election. The
chief reason given was that a trial by jury if conceded to one contestant, must be conceded to all, and
that "delay must take place in preparing and setting
down such an issue for trial; after trial of the most
tedious and expensive kind the jury may disagree,
(one dissenter from the rest being adequate to produce that result,) and their consequent discharge.




CONTESTED ELECTION CASES.        217
Another and another trial may follow with like results, until one of the parties weary with delay, or
bankrupt in prosecuting his rights abandons them
in despair," and by bills of exceptions and writs of
error the proceedings might be still further prolonged. This would operate most unjustly to the
contestant, if in the end it should appear that he
was rightly entitled to the office. (Kneass' Case, 2
Parsons, 599. Brzgrihtley's Election Cases, 260.)
~ 289. The same point was decided in the same
way, by the Supreme Court of Pennsylvania, in Ewing vs. Filley, 43 Pa. St. R., 389. And in that case
the Court also held that an act providing for the trial of a case of contested election without the intervention of a jury, is not for that reason unconstitutional.  "It is not," says Lowrie, C. J., in that case,
"in the act of organization of the State, nor in the
perpetuation of its organic succession, but in the administration of rights under the organization, that
the constitution secures the trial by jury.  The jury
is the proper element in the determination of rights
which need enforcement by means of the State organization, but there is a much larger popular element in our elections, the votes of all the people, and.all our political practice shows that we have not considered a jury an essential means in deciding contested elections of public officers.
~ 290. The returns and other election papers
though conclusive upon the canvassers, may be impeached upon a quo warranlo, or other form of contested election. The very question to be determined
in such a contest is frequently the truthfulness and
reliability of thereturns, poll books, &c., and the




218        PRACTICE AND EVIDENCE IN
duty of the tribunal trying the case, is to ascertain
not who was returned as elected, but who was in
fact elected.  (People vs. Vail, 20 Wend., 12.  Commonwealth vs. Commissioners, 5 Rawis., 77.) And in
accordance with this rule it was decided in Howard
vs. Shields, (16 Ohio, State Rep., 184,) that parol evidence is admissible, not only to impeach, but also to
correct omissions in the poll books and tally sheets,
and that these documents when so corrected are
sufficient prima facie evidence of the result of the
election. In that case the judges and clerks of the
election had omitted to sign the poll books and tally
papers at the proper place, and had also omitted to
fill the blanks in the caption, or to state the aggregate number of the voters, and parol evidence was
held to be admissible to correct these errors.
~ 291. In the case last named it was also held
that the tally sheet kept by the officers of the election, is competent evidence in an election contest to
show the true state of the vote. It is good until impeached, and affords prima facie evidence of the
number of votes cast for each candidate. And see
also Powers vs. Reed, 19 Ohio State R., 189. The
ballots themselves are, however, (when fully identified,) better evidence of the number of votes cast,
and for whom cast, than the tally lists made from
them by the officers of election. (People vs. Holden,
28 Cal., 123.) But unless the law has provided means
for preserving and identifying the very ballots cast,
and unless the law in that respect has been strictly
pursued, the ballots may not afford evidence as reliable as the other election papers.
~ 292. It has been held that for the purpose of




CONTESTED ELECTION CASES.            219;
showing that a person voted the poll list is admissible in evidence, though not signed by the inspectors or clerks having no heading to denote its character, and never having been filed in the clerk's
office.  (People vs. Pease, 27 N. Y., 45.)   But it
would, of course, be necessary to prove by evidence
aliunde, that such a paper was the poll list, which
was actually kept by the officers of the election,
since it would not prove itself.
~ 293. And where a voter refuses to disclose, or
fails to remember for whom he voted, it is competent to resort to circumstantial evidence, to raise a.
presumption in regard to that fact.  Ibid.  And see
Cushing's Am.Parl. Law, Sec. 199,? 210.  And within
this rule it was held in People vs. Pease, to be proper
to ask the voter for whom he intended to vote; also
to prove that he was an active member of a particu-,
lar political party, or obtained his ballot from a person who was actively supporting a particular candidate or a particular ticket. (d.)
~ 294. It seems to be quite well settled that where
one who is alien born has voted at an election, the law
presumes that he has been naturalized until the contrary is shown. To presume the reverse would be
to presume that a crime has been committed, but
the law always presumes innocence. It is true this
involves the necessity of proving a negative, a very
difficult thing to do, but often necessary in order to
charge a party with a criminal offense.  (New 7yersey Case, 1 Bartlett, 24.) The very great difficulty
(d.) Notwithstanding the high authority of Peoule vs. Pease, it is apparent that the distinction between asking a voter for whom he voted
and asking him for whom he intended to vote, is very narrow, and probably not substantial.




..220.PRACTICE AND EVIDENCE IN
however, of proving that a person has not been naturalized, would seem to require that slight proof'ought to be sufficient to shift the burden. Thus, if
it be shown that he claimed that aliens had the right
to vote, or if he has made declarations or admissions
to the effect that he has not been naturalized; or if
he produces as the evidence of his citizenship, a paper showing that he has declared his intention to become a citizen only; or perhaps, if when he is called
as a witness, he refuses to answer whether he has
been naturalized or not, or to say when or where, or
by what Court, he was naturalized —in any of these,cases, the presumption that such a voter was duly
naturalized ought to be regarded as so far overcome
as to require the party seeking to sustain his vote,
to produce affirmative evidence of naturalization, a
thing not very difficult to do, since there is always a
record, and the voter must be presumed to know
where it is. There are in the United States many
hundreds of Courts possessing the power to grant:naturalization, and to require in any case that affirmative proof be offered that no one of such Courts
has ever granted naturalization to a particular person, would be to require what is practically impossible.
~ 295. The charters of most municipal corporations contain a provision to the effect that the council or other legislative body thereof shall be " the
judge of the election and qualification of its own
members." And an important question has arisen
as to whether the jurisdiction of a city council, or
other similar body, is under such a charter exclusive
~of that given to the courts of justice or only concur



CONTESTED ELECTION CASES.        221
rent with it. In State vs. Funck, (17 owa, 365,) it was
held that inasmuch as the city had passed no ordinance defining the method by which an election of
one of its members may be contested, the claimant
could resort to the proceeding provided by statute
for trying title to a public office, but no opinion was
expressed as to what the law would be in a case
where provision is made by ordinance for such trial.
An examination of the adjudged cases in this country will, however, show that the jurisdiction of the
Courts to inquire into the regularity and the validity
of elections-a jurisdiction which belongs to all
Courts of general and original jurisdiction, is not to
be regarded as taken away by any merely negative
words. Their jurisdiction remains unless it "appears with unequivocal certainty that the legislature
intended to take it away."  (Dillon on Municifpal
Corporalions, Sec. 144.) It follows that a charter
provision that the council of a city "shall be the
judge of the election, qualifications and returns of
its own members," does not oust the courts of justice of their jurisdiction. The two tribunals have
concurrent jurisdiction in such a case; but if the provision be that no court shall take cognizance of cases of this character, or that the council shall be the
sole or the exclusive, or final judge, &c,, then the
courts are shorn of their power in the premises.
Upon this general subject see the learned and exhaustive discussion by Judge Dillon, in his work on
f/Municipal Corporations, Sec. 139 to 142. And see
also Slate vs. Fitzgerald, 44 Mo., 425.  Commonwealth vs. Carrigues, 28 Pa. State R., 9. Ewing vs.
Filley, 43 Pa. State, 384.  Commonwealth vs. Leach,




22 2       PRACTICE AND EVIDENCE IN
44 Pa. State, 332.  Cooley on Const. Limitations, 276,
623, 634, note. Smith vs. New York, 37 N. Y., 518.
People vs. JMulvaney, 13 Mich., 481. Exparte fealh,
3 Hill, N. Y., 42, and cases cited by Cowan, Judge.
The true doctrine seems to be that a special remedy
given by statute is cumulative, and not exclusive of
the ordinary jurisdiction of the courts, unless the
manifest intention of the statute be to make such
special remedy exclusive, and such intention must
be manifested by affirmative words to that effect.
~ 296. A statute of New York directed that one
of the inspectors of election who shall actually preside at such election, to be appointed by the major
part of the inspectors, shall in person deliver to the
clerk a copy of the statement of votes. It was held
that the appointment of the inspector to deliver the
statement to the clerk need not necessarily be in
writing. An appointment by writing, in such a case,
is to be preferred, but is not indispensable, since the
statute is silent.as to the mode of appointment, and
it was therefore error to exclude a statement of the
vote at a given precinct, because the inspector presenting it did not produce WRITTEN evidence of his
appointment to discharge that duty.  (The People vs.
/an Slyck, 14 Cowan, 297.)
~ 297. It is very clear that the rule which upon
grounds of public policy protects the legal voter
against being compelled to disclose for whom he voted, does not protect a person who has voted illegally from making such disclosure. To give to that
rule this wide scope, would be to make it shield
alike the right and the wrong, the honest and the
dishonest. It was intended to protect' the inviolable




CONTESTED ELECTION CASES.       223
secrecy of an honest ballot, and thus the purity of
the ballot box. It was not intended to be used in
aid of the schemes of corrupt men to defeat the will
of the people. It follows, that having proven that
A. voted at the election in question, and that he was
not a legal voter, he may be required to testify as to
the person or persons for whom he voted.  (McDaniel's Case, 3 Pa. Law yournal, 310. Brzghtley's
Election Cases, 248.)
~ 298. If an illegal voter, when called as a witness, swears that he does not know for whom he voted, and it is impossible to determine from any evidence in the case, for whom he voted, his vote is not
to be taken from the majority. Ibid. But it does
not follow that such illegal votes must necessarily be
counted in making up the true result, because it
cannot be ascertained for whom they were cast. In
purging the polls of illegal votes, the general rule
is, that unless it be shown for which candidate they
were cast, they are to be deducted from the whole
vote of the election division, and not from the candidate having the largest number.  (Shepherd rs.
Gibbons, 2 Brewst., 128. McDaniel's Case, 3 Penn.,
L. 7., 310.  Cushing's Election Cases, 583.)  Of
course, in the application of this rule such illegal
votes would be deducted proportionately from both,candidates, according to the entire vote returned for
each. Thus, we will suppose that John Doe and
Richard Roe are competing candidates for an office,
and that the official canvass shows
For John Doe,    625 votes.
For Richard Roe,  575 votes.
Total vote,      1200
Majority for Doe --— 50




224        PRACTICE AND EVIDENCE IN
But there is proof that 120 illegal votes were cast,
and no proof as to the person for whom they were
cast. The illegal vote is ten per cent. of the returned vote, and hence each candidate loses ten per
cent. of the vote certified to him. By this rule John
Doe will lose 62~  votes, and Richard Roe 57.'
votes, and the result as thus reached is as follows:
Doe's certified vote,    625
Deduct illegal votes,    62'
Total vote,    562 2
Roe's certified vote, 575
Deduct illegal votes, 57'2
Total vote,     517'2
Majority for Doe,   45.
~ 299. This is probably the safest rule that can be
adopted in a court of justice, where there is no power
to order a new election, and where great injury would
result from declaring the office vacant; but it is manifest that it may sometimes work a great hardship,
inasmuch as the truth might be, if it could be shown,
that all the illegal votes were on one side, while it is
scarcely to be presumed that they would ever be divided between the candidates in exact proportion to
their whole vote. But the rule which in the absence
of proof as to how illegal votes were cast, would
deduct them all from the majority candidate, is much
more unreasonable and dangerous.  Of the two
evils the least should be chosen. We see here, however, how important it is that it should, if possible,
be made to appear either by direct or circumstantial
evidence, for whom each illegal vote was cast.




CONTESTED ELECTION CASES.       225
In a legislative body having power to order a new
election, and in any other tribunal having the same
power, it will doubtless, generally, be regarded as.
safer and more conducive to the ends of justice, to
order such new election, than to reach a result by
the application of the rule above stated.
~ 300. It would seem, therefore, that in a case
where the number of bad votes proven is sufficient
to affect the result, and in the absence of any evidence to enable the court to determine for whom
they were cast, the court must decide upon one of
the three following alternatives, viz:
1. Declare the election void.
2. Divide the illegal votes between the candidates
in proportion to the whole vote of each.
3. Deduct the illegal vote from the candidate having the highest vote.
And it is clear, also, that where in such a case no
great public inconvenience would result from declaring the election void, and seeking a decision by an
appeal to the electors, that course should be adopted. And in a case where it is essential that one or
the other party to the contest be confirmed in the
office to prevent such public inconvenience, then the
second alternative above named should be adopted,
but the third should in no event be adopted. Let it
be understood that we are here referring to a case
where it is found to be impossible by the use of due
diligence to show for whom the illegal votes were
cast. If in any given case it be shown that the
proof was within the reach of the party whose duty
it was to produce it, and that he neglected to produce it, then he may well be held answerable for his
15




226        PRACTICE AND EVIDENCE IN
own neglect, and because it was his duty to show
for whom the illegal votes were cast, and because he
might, by the use of reasonable diligence, have made
this showing, it may very properly be said that he
should himself suffer the loss occasioned by deducting them from his own vote.
This is the principle involved in the case of Duffey, (4 Brewszesr, 531,) where the court laid down the
following rules:
1. It is the right of petitioners contesting an election, and also the right of the respondent, to examine
the election papers on file in the proper office, and
if it be apparent from them that persons have voted
in any district whose names were not on the "registry list," without being vouched according to law,
then primafacie all such votes are illegal.
2. When a contest has been inaugurated and'complaint made and notice given that such votes
have been received, the burden of proof falls upon
the candidate advantaged by the general count in:such district to show either that the persons so voting
possessed severally every qualification, or if this be
not so that they voted for his opponent; he must lift
the curse which the law imposes upon such ballots;
otherwise it will be presumed that they were polled
and counted for him; and thereupon the poll will be
purged by striking the whole number of such votes
from his count.
To the first of these propositions no exception
can be taken, and we apprehend that the same ruling will be made in all our States which have registry laws requiring persons not registered to file with
the judges of the election affidavits of themselves or




CONTESTED ELECTION CASES.       227
others, in proof of their right to vote. The second
proposition can be maintained if at all, only upon
the ground that it is in the case stated practicable to
show for whom the illegal votes were cast. It is
said in the course of the opinion: "The number of
these illegal votes was easy of ascertainment; the
names of the persons polling them had but to be
read to be known." Upon the theory that the illegal voter can be called as a witness and compelled
to disclose for whom he voted, (which is beyond
doubt the true theory,) it would be easy in such a
case as the one stated, to call the illegal voters and
require them to testify to the fact. It still remains,
however, a question whether they shall be called at
the instance of the contestant upon the theory that
the burden of proof is upon him to make out his
case, or at the instance of the respondent upon the
theory that because he is advantaged by the general result he must show that all illegal votes were
cast for his opponent, or suffer them to be deducted
from his own vote. The court adopted the latter
theory, but we think the safer rule would be for the
contestant to show not only that a certain number
of illegal votes were polled, but also to show if he
can, that they were cast for his opponent.  It is not
intended by this to assert that the rule above quoted
from Duffey's case is positively erroneous, but only
to intimate a doubt, and to express the opinion that
the ordinary principle which requires the party holding the affirmative to prove the facts, and all the
facts, necessary to make out his case, is the better
rule, and that it will in all cases be safer to follow it.
Of course, if by the use of due diligence it be im



228        PRACTICE AND EVIDENCE IN
possible to -find the illegal voters, or if upon being
found it shall be impossible to ascertain from their
testimony how they voted, the contestant should not
suffer. This would present the question, what\ is to
be done with illegal votes when it is found to be impossible by due diligence to show for whom they
were cast, a question which is discussed in the Dreceding sections.
~ 301. A person who votes without being qualified is a mere intruder, and not entitled to the privileges which belong to legal voters. But such a
person will not be compelled to testify as to the person for whom he voted, until it is clearly shown that
he voted illegally. So long as the question as to
the legality of his vote is in doubt, he cannot be
compelled to make the disclosure. (Case of Locust
Ward Election, 4 Penn., L. 7., 349. People vs. Cicolt, 16 Mich., 283. State vs. H-ilman/el, 23 Wis.,
422.) An illegal voter may, however, decline to answer for whom he voted, on the ground that his answer might criminate himself, but in such case the
contents of the ballot may be shown by other testimony.  (State vs. Ohio, 23 Wis., 309.)
And a legal voter may waive his privilege and
voluntarily testify as to the persons for whom he has
voted.'(Reed vs. Kneass, 2 Parsons, Philadelphia,
584. Brzightley's Election Cases, 366.)
~ 302. While a mere irregularity which does not
effect the result, will not vitiate the return, yet where
the provisions of the election law have been entirely
disregarded by the officers, and their conduct has
been such as to render their returns utterly unworthy of credit, the entire poll must be rejected. In




CONTESTED ELECTION CASES.       229
such a case the returns prove nothing. But it does
not follow that legal votes cast at such poll must be
lost. They may be proven by secondary evidence,
(the return being, until impeached, the primary evidence,) and when thus proven may be counted.
(Litllefeld vs. Green, 1 Chicago Legal News, 230.
Brzghtley's Election Cases, 493. M rcKenzie vs. Braxion, 42d Congress.  Giddings vs. Clark, 42d Congress.)
~ 303. The question, under what circumstances
the entire poll of an election division may be rejected, has been much discussed, and conflicting views
have been expressed by the courts. The power to
reject an entire poll, is certainly a dangerous power,
and though it belongs to whatever tribunal has jurisdiction to pass upon the merits of a contested election case, it should be exercised only in an extreme
case, that is to say, a case where it is impossible to
ascertain with reasonable certainty, the true vote.
It must appear that the conduct of the election officers has been such as to destroy the integrity of
their returns, and to avoid the prima facie character
which they ought to bear as evidence, before they
can be set aside, and other proof demanded of the
true state of the vote.  (Mann vs. Cassiday, 1
Brewsl., 60.) And it is truthfully said in Thompson
vs. Ewing, (hbid, 107,) "that the whole conduct of
election officers may, though actual fraud be not apparent, amount to such gross and culpable negligence, such a disregard of their official duties, as to
render their doings unintelligible or unworthy of
credence, and their action entirely unreliable for any
purpose."  See also Weaver vs. Given, [Ibid 140.1




230        PRACTICE AND EVIDENCE IN
Batlurs vs. Megary, [Ibid, 162.]  Gibbons vs. Slewart; 2 Brewster, 1.
~ 304. It was said by the Supreme Court of Pennsylvania, in Chadwick vs. Melvin, (Brightley's Eleclion Cases, 551,) that "there is nothing which will
justify the striking out of an entire division, but an
inability to decipher the returns, or a showing that not
a single legal vote was polled, or that no election
was legally held." Undoubtedly the general rule is
that if legal votes have been cast in good faith by
honest electors, it is the duty of the court or tribunal trying a contest to ascertain their number and
give them due effect, notwithstanding misconduct or
even fraud on the part of the election officers.
Such fraud or misconduct may destroy the value of
the officer's certificate, and may subject him to severe punishment, but the innocent voter should not
suffer on that account, if by any means his rights
can be upheld. And yet the statement just quoted
from Chadwick vs. Melvin, is too sweeping. The
question is not whether a single legal vote has been
polled, but whether the voice of the majority has
been fairly expressed. In Biddle and Richard vs.
Wing, ( C. e. H, 504,) the'rule is more correctly stated as follows: "Indeed nothing short of the impossibility of ascertaining for whom the majority of votes
were given, ought to vacate an election, especially
if by such decision the people must, on account of
their distant and dispersed situation, necessarily go
unrepresented for a long period of time."
~ 305. Although the fact that the officers of an
election were not sworn, will not of itself, and in the
absence of' fraud, render the election null and void;




,CONTESTED ELECTION CASES.        231
yet if fraud be proven, or it appear that such officers
have wilfully disobeyed the law or disregarded their
duty, the fact that they were not sworn, may become
an important fact in determining whether or not the
poll shall be entirely rejected. It is impossible to
define exactly the degree of irregularity and illegality in the conduct of an election which will render
it void, but perhaps the best rule upon the subject is
this. If the voice of the electors can be made to
appear from the returns, either alone or aided by
extrinsic evidence, with reasonable clearness and
certainty, then the election should stand; but not
otherwise. This rule has made necessary another,
viz: That if it appear that illegal votes have been
admitted, it is the first duty of the tribunal trying
the contest to purge the poll of such illegal votes, if
there is evidence upon which this can be done, and
effect should be given to the majority of the good
votes.
~ 306. The general rule is that the ordinary rules
of evidence apply as well to election contests as to
other cases. The evidence must therefore be confined to the point in issue, and must be relevant.
The burden of proof is always upon the contestant
or the party attacking the official return, or certificate. The presumption is that the officers of the
law charged with the duty of ascertaining and declaring the result, have discharged that duty faithfully. In a contested election case, however, where
the question is who received the highest number of
votes, this presumption may be rebutted and overcome by proof. If a disqualified voter declines to
answer as to how he voted, or if he cannot be found




232        PRACTICE AND EVIDENCE IN
so as to be examined as a witness, a good deal of
latitude should be allowed in showing the fact by
circumstantial evidence. It may be shown that an
illegal voter asked for a particular ticket at the poll;
that no scratched tickets were voted, and the like.
[Thompson vs. Ewing, 1 Brezst., 68-9.]
~ 307. A statute which confers upon any elector
of the proper county the right to contest, at his option, the election of any person who has been declared to be duly elected to a public office, to be exercised in and for such county, does not oust the jurisdiction of the proper court, on information in the
nature of a quo warranto, to inquire into the authority of any person who assumes to exercise the functions of a public office or franchise, and to remove
him therefrom if he be a usurper, having no legal
right thereto. [Peopie vs. Holden, 28 Cal., 123.]
"The two remedies are distinct," says the court in
that case, "the one belonging to the elector in his
individual capacity, as a power granted, and the other to the people, in the right of their sovereignty."
See also, People vs. 7ones, (20 Cal., 50.)
~ 308. It seems to'be settled that the title to an
office confers upon the person elected a right to the
fees and emoluments thereof, from the commencement of his legal term. And, accordingly, it has
been frequently held that an action for money had
and received will lie by the officer de jure against one
who has intruded into the office by color of a certificate of election, to recover fees received during the
time of such intrusion.  (Arris vs. Stukely, 2 Mod.,
260.  1 Seiw., AV. T. 68,  Crosbie vs. Hurley, 1 Ale
i Nap., 431. Mayfeld vs. Moore, Brzghleey's Eleclion Cases, 605.)




CONTESTED ELECTION CASES.         233
The fees and emoluments."are incident to and as
clearly connected with the office as are rents and
profits to real estate, or interest to bonds and such
like securities."  (Glascock vs. Lyons, 20 Ind., 1.
Petit vs. Rosseau, 15 La., 239.  Peopile vs. Smythe,
28 Cal., 21.  People vs. Tiernan, 30 Barb., 193.
People vs. Pease, 27 iN. Y., 56. Hun/er vs. Chandier, 45 Mo., 453.  United States vs. Addison, 6
Wall., 291. Mo/Io  vs. Connolly, 50 Barb., 5 16.)  In
Mayfield vs. Moore, (supra,) it was held, however,
that if the incumbent received his commission bona
fide, he will be allowed in such action his reasonable
expenses in executing the duties of the office, but
otherwise, if his intrusion was without pretense of
legal right.
~ 309. In the case of United Stales vs. Quinn,
[Brighzley's Election Cases, 592,] Judge Woodruff
of the United States Circuit Court, for the southern
district of New York, had occasion to discuss the
constitutionality of the 20th section of the act of
Congress of May. 31, 1870, punishing a fraudulent
registration for the purpose of voting for a member
of Congress. In a very clear and able opinion he
demonstrates, that Congress has power to punish
frauds perpetrated in an attempt to prevent a fair
election of a member of that body. This is not an
attempt to fix the qualifications of electors for Representatives in Congress. These are fixed by the
State, and are the same as those belonging to electors for members of the most numerous branch of
the State legislature. It only provides in effect that
"it shall be an offense against-the laws of the United
States, to contribute by fraud or violation of the




234        PRACTICE AND EVIDENCE IN
State registry laws, to the sending of a Representa —
tive to the Congress of the United States, who is.
not clothed with the authority which a true expression of the popular will would give; and that is all."
It would indeed be a strange anomaly if the gov —
ernment of the United States could be obliged to
look upon commission of frauds and crimes perpetrated for the purpose of putting into the halls of
Congress men who have no right there, and who
owe their seats to corruption, and yet remain powerless to prevent or punish it. If it be said that it is
the exclusive prerogative of the States to punish
election frauds, whether committed in the effort to
elect State officers simply, or members of the National legislature, or Presidential electors, the answer
is, that the States have the power, but not the exclusive power, to punish frauds appertaining to the
election of federal officers. The power to punish
such frauds against itself belongs to the United
States Government, and is nothing more nor less.
than the power of self protection.
~ 310. The House of Representatives of the United States will not grant to a sitting member whose
seat is contested, an extension of time in which to
take testimony, unless it appear that he has not by
the use of great diligence, been able to procure his.
testimony within the time allowed by the law. The
reason for this rule is thus stated in the report of
the Committee of Elections, in the case of Giddings
vs. Clark, in the 42d Congress.
"It must be borne in mind that the party now asking an extension is the sitting member. He is now,
and has been during a large part of the term, exer



CONTESTED ELECTION CASES.       235
cising the functions and receiving the emoluments of
the office in question. In a litigation of this character the thing in controversy grows daily less, and
does not, as in most ordinary law suits, remain intact
to be recovered by the successful party in the end.
In this particular case the extension asked for would
be very nearly equivalent to a final decision of the:
case in favor of the sitting member upon the merits.
We are now near the close of the second session of
the Congress. If the parties are to be sent back to
Texas to take further testimony, of course no further action can be taken until the opening of the
third and last session, which is of but ninety days'
duration, and would be necessarily far spent before
a final decision could be reached. It does not follow from these consideiations that a sitting member.
can in no case be allowed an extension after the
time allowed by law for taking testimony expires,
but your committee think it does follow that no such
extension should ever be granted to a sitting member, unless it clearly appears that by the exercise of'
great diligence he has been unable to procure his.
testimony, and that he is able, if an extension be
granted, to obtain such material evidence as will establish his right to the seat, or that by reason of the
fault or misconduct of the contestant he has been
unable to prepare his case."
~ 311.. In a contested election case in Congress an,
application by the sitting member for an extension
of time to take testimony, made after the time allowed by law for taking testimony has expired, and
after the term of office contested for has well nigh
expired, it is necessary, in addition to showing great




236        PRACTICE AND EVIDENCE IN
diligence, to state on oath the names of the witnesses whose testimony is desired, and the particular
facts which can be proven by them. And the affidavits of such witnesses themselves should be produced, or a sufficient reason given for failing to produce them. Ibid. (See same report for discussion
as to what constitutes the proper degree of diligence in such a case.)
~ 312. Where the statute makes it a misdemeanor for any officer of elections to place any number
or mark upon the ballot of a voter, but does not declare that ballots so marked or numbered by such
officer, shall be rejected-the true rule is to receive
and count them. To reject such ballots would be to
establish a rule under which an officer of election
could destroy the effect of a ballot cast in good faith
by a legal voter, by placing a number or mark upon
it. For a full consideration and discussion of this
point, see the cases of McKenzie vs. Brax/on, and
Giddings vs. Clark, in the 42d Congress. The report in the latter case says:
"By reference to the statute here referred to, it
-will be seen that it is made a misdemeanor for any
judge of election to place any number or mark upon
the ticket of any voter; but it is not declared that
the vote of a legally qualified voter shall be rejected
because his ballot is marked by the judges. We.should not be inclined to put a construction upon
this statute which would enable an officer of election
to destroy the effect of a ballot cast in good faith by
a legal voter, by placing a number or mark upon it.
A ballot may be thus marked or numbered without
the knowledge or consent of the voter, and it would




CONTESTED ELECTION CASES.       237
be manifestly unjust that he should, in this way, be
deprived of his vote."
"We think it plain that, inasmuch as the statute
affixes a penalty for marking a ballot, and does not
expressly declare that a marked ballot shall be
thrown out, the board erred in rejecting the vote of
this county upon this ground."
~ 313. The House of Representatives of the'United States, in construing a State law, will follow
the construction given it by the authorities of the
State, whose duty it is to construe and execute it.
Where a given construction has been adopted and
acted upon by the State authorities, the federal government should abide by and follow it. It was so
held by the House of Representatives of the United States, in' the matter of the election of Representative from the State of Tennessee.  (42d Congress.)  The report of the committee has this language:
"It is a well established and most salutary rule,
that where the proper authorities of the State government have given a construction to their own constitution or statutes, that construction will be followed by the Federal authorities. This rule is absolutely necessary to the harmonious working of our
complex governments, State and National, and your
committee are not disposed to be the first to depart
from it."
And in the case of Birch vs. Van Horn, (2 Bartlett, 205,) the House refused to go into an inquiry
as to the validity of the new constitution of Missouri, upon the ground that it had been recognized




238        PRACTICE AND EVIDENCE IN
as valid by the people, and by all the departments
of the State government.
~ 314. The officers authorized to take testimony
in contested election cases, in the House of Representatives, derive their authority from the act of
Congress, and not from  State laws. Hence the
Mayor of a city may take such testimony outside of
the limits of the city of which he is Mayor, although
by the State law he has no power to administer an
oath elsewhere than within such city. (Washburn
vs. Voorhies, 2 Bartletl, 54.)
~ 315. In Wisconsini it is held that the complaint
in a contested election case, brought in the Courts
of that State, is sufficient, if it states the number of
votes in favor of the defendant which were illegally
polled, without specifying the names of the persons
by whom such illegal votes were cast. (Doerf/inger
vs. flelmantel, 21 Wis., 566.) And this is in accordance with the general tenor of judicial decisions in
this country.
~ 316. A contested election case, whatever the
form of the proceeding may be, is in its essence a
proceeding in which the people-the constituencyare primarily and principally interested. It is not a
suit for the adjudication and settlement of private
rights simply. It follows that the parties to the
record cannot, by stipulation or otherwise, discontinue or compromise a case of this character without
the consent and approval of the court or tribunal
trying it. Nor should such consent ever be given,
unless the Court giving it is sufficiently advised to
be able to say that it is for the interest of the public
to do so. (Mann vs. Cassiday, 1 Brewster, 43. Peo



CONTESTED ELECTION CASES.         239
ile vs. Holden, 28 Cal., 139. Kneass' Case, 2 Parsons, 570.  Collings' Case, Brightleys' Election Cases,
513.)
~ 317. Mandamus is not the proper remedy for
obtaining possession of an office, or for ousting one
who usurps an office.  There are cases perhaps
where there is no doubt as to the duty of a public,officer to issue a commission to a person elected,
and in which, therefore, a mandamus may issue to
compel the performance of that duty.  But when it
is a question of any doubt, a court should not interfere by mandamus, but should put the party in the
first instance to an information in the nature of a
quo warranto, or to such remedy as may be specifically provided by statute.  (Commonwealth vs. Commissioners, 5 Rawle, 75.)
~ 318. And it has been held also that a court of
chancery should not interfere by injunction to restrain the officers of election from counting illegal
votes, or from issuing certificates of election to persons not entitled to them. The reason is that a
court of chancery will not interfere collaterally and
in advance of a contest to pass upon the claims of
conflicting claimants of an office.  (Lawrence vs.
Knight, 1 Brewster, 69, Brightley's Election Cases,
617.)  And to the same effect is Hulseman vs. Rems,
(41 Pa. State R., 296.) But this ruling, though evidently sound and supported by the weight of authority, has not been altogether uniform. In Miller vs.
Lowery, (5 Phila. 202,) the Court of Common Pleas
of Philadelphia granted an injunction to restrain a
candidate who had received a certificate of election,
regular upon its face, from taking possession of the




240        PRACTICE AND EVIDENCE IN
office, upon the ground that the certificate had been
fraudulently issued.  And see also Peck vs. Weddell,
(17 Ohio State R., 271.)
~ 319. Where the application is for an injunction
to restrain the officers of election from receiving
votes from a class of persons who are clearly disqualified, the same rule does not apply, and an injunction may well be granted, for in such a case, the
object would be, not to decide prematurely and collaterally, a contested election case. Mc/lvain vs.
Christ Church, of Reading, [28 Legal Int., 126.]
~ g20. A case may have arisen in which a court
having, in a proper action, decided upon the result of
an election, may have issued upon proper application, a writ of mandamus; to compel the proper election officers to issue a certificate of election in accordance with that decision.  But, ordinarily the
writ of mandamus will only issue to compel a certificate to issue upon the returns, and in accordance
with the result as it appears therefrom. When it
becomes necessary to go beyond the returns and
consider questions touching the legality of the election, or of fraud, illegal voting, or the like, then
mandamus is not the proper action, and it is necessary to resort to quo warranto, or to such statutory
proceeding as may be provided in such cases. (State
vs. Churchill, 15 Minn., 455.)
~ 321. Mandamus will lie to compel a board of
returning officers to declare the result and issue
certificates in accordance therewith, where these duties are by statute required of such board. As such
duties are purely ministerial, the board may be compelled by mandamus to perform them. (Clark vs.




CONTESTED ELECTION CASES.        241
McKenzie, 7 Bush., [Ky.] 523.) And in West Virginia it has been held that the Circuit Court can by
mandamus compel a board of supervisors of a
county to issue certificates of election to township
officers adjudged by the Court to have been duly
elected at a valid election.  (Bush vs. Monroe Co.,
4 W. Va., 371.) But of-course this latter case must
have been one in which the election returns and all
proper evidence as to the result, came legitimately
before the Court for consideration. If otherwise,
the case is not good authority, for it is quite well
settled that mandamus will not lie to try and finally
determine the title to an office.
~ 322. It is well settled, as a general rule, that the
writ of mandamus will not be granted in any case
where another adequate and specific remedy is provided, and it follows that the cases are rare in which
the courts will interfere by mandamus, with questions touching the title to and possession of a public office. The courts have almost uniformly refused
to grant the writ of mandamus in cases of this kind,
upon the ground that an information in the nature
of a quo warranlo is the appropriate remedy for
testing the title to an office, as well as for determining the right to the possession thereof. Where a
party is in possession of an office as its actual incumbent, exercising its functions defaclo, and under
color of right, mandamus will not lie to compel him
to vacate and give place to another. In all such
cases the party aggrieved will be left to his common
law remedy by quo warranto, or to such other remedy of like nature, as may be specifically provided
by statute.  (High on Extraordinary Legal Reme16




242        PRACTICE AND EVIDENCE IN
dies, Sec. 49. People vs. Corporation of New York, 3
7ohns Gas., 79..People vs. Supervisors of Greene, 12
Barb., 217. Anderson vs. Colson, 1 Neb., 172. Bonner vs. State of Georgia, 7 Geo., 473. St. Louis Co.
Court vs. Sparks, 10 Mo., 118. State vs. Rodman,
43 Mo., 256. People vs. Common Council of Detroit,
18 Mich., 338.  Underwood vs. While, 27 Ark., 382.
People vs. Forquer, Breese 68. State vs. Dunn, Mi'nor's, [Ala.] 46.  Commonwealth vs. Commissioners, 6
Whart., 476.)  And the same doctrine is maintained
in the courts of England, (King vs. Mayor of Colchester, 2 T. R., 260.  Queen vs.,Derby, 7 Ad. e E.
419. King vs. Winchester, Ib,, 215.)  A few cases
may be found which seem to hold a contrary doctrine. (Conlin vs. Aldrich, 98 Mass., 557. Harwood
vs. Marshall, 9 Md., 83.)  But it is safe to say that
the rule as above stated is sustained by the over-whelming weight of authority.
~ 323. And the rule is quite as well sustained by
reason. Mr. High, in his excellent work on Extraordinary Remedies, well says:  (Sec. 50.)  "Aside
from the existence of another adequate remedy by
proceedings in quo warranto, to test the title of an
incumbent to his office, it is a sufficient objection to
relief by mandamus in such a case, that the granting
of the writ would have the effect of admitting a second person to an office already filled by another,
both claiming to be duly entitled thereto, and resort
must still be had to further proceedings to test the
disputed title.' And the rule finds still further support in the fact that ordinarily the determination of
the question of title to a disputed office upon proceedings in mandamus would be to determine the




CONTESTED ELECTION CASES.'243
rights of the de facto incumbent in a proceeding to
which he is not a party."
~ 324. " Where the office is already filled," says
the court in People vs. Corporation of NAew York, supra, " by a person who has been admitted and sworn
and is in by color of right, a mandamus is never issued to admit another person, because the corporation being a third party may admit or not, at pleasure, and the rights of the party in office may be injured without his having an opportunity to make a
defense.  The proper remedy in the first instance
is by an information in the nature of a quo warranto,
by which the rights of the parties may be tried."
~ 325. While it is well settled that mandamus
will not lie for the purpose of settling. disputed
questions concerning title or possession of an office,
cases have arisen in which this writ has been granted to compel the proper officer to swear in the person elected to an office. This is simply to compel
the qualifying officer to' discharge a duty enjoined
upon him by law, and is therefore within the proper
scope of this writ.  (King vs. Clark, 2 East, 75.
Churchwarden's Case, Cartd., 118. King vs. Rees,
lb., 393. Ex parte Heath, 3 Hill, 42.  High on Extraordinary Remedies, Sec. 53, and cases cited.)
~ 3826. But it is not competent, or at least not
proper, for a court in the exercise of this power, to
compel the swearing in of the person elected to go
further, and in cases of disputed and contested elections, to compel the qualifying officer to swear in either one of such parties before a judgment of ouster
has been rendered in a proper proceeding.  "In all
cases of doubt," says Mr. High, in his work above




244        PRACTICE. AND EVIDENCE IN
cited, (Sec. 53,) " as to the election of officers where
the validity of the election is the chief point in controversy, the courts will not interfere by mandamus,
but will put the aggrieved party in the first instance
to an information in the nature of a guo warranto.
And before a mandamus will be granted to compel
the recognition of one as an officer, the court will
require that judgment of ouster shall have been
given against the incumbent de facto." (Commonwealth.vs. County Commissioners, 5 Rawle, 75.)
~ 327. The Supreme Court of Massachusetts, in
Ellis vs. County Commissioners, (2 Gray, 370,) held
that where the law imposed upon the County Commissioners, the duty of certifying as to who received
the highest number of votes for County Treasurer,
mandamus will lie to compel such commissioners to
certify that the petitioner had a majority of such
votes, [if such was the fact,] although another person had been declared by them to be County Treasurer, and put in possession of the office. This was
a case, however, which turned upon a single question of law, and all the facts were, by the return to
the alternative writ fully stated. And while holding
that the court might, if satisfied that petitioner actually received a majority of all the legal votes cast,
command the board to so certify, the opinion is
clearly intimated that after obtaining such a certificate it would be necessary to resort to quo warranto
in order to remove the incumbent from the office
and place the petitioner in possession;and it is
therefore evident that the latter action is, in the absence of statutory regulations the more appropriate
remedy, and that it should be adopted in the first




CONTESTED ELECTION CASES.        245
instance. Indeed it is impossible to reconcile this
case with the general current of authority upon this
subject, and it is quite clear that no action should be
had in a mandamus proceeding, to which the incumbent of the office is not a party, which may directly
or indirectly affect his rights, or pre-judge his claims.
~ 328. While mandamus will not lie to compel
admission to a disputed office, or to determine disputed questions of title to an office, it is sometimes the
proper remedy for a failure of election officers to
perform certain merely ministerial duties in connection with elections. By it the proper board or officer can be compelled to canvass the election returns;
to determine and declare the result; to issue certificates to the persons entitled thereto. The writ may
also be sought merely for the purpose of swearing
in the person elected. (Ex parle Heath, 3 Hill, 42.)
But the effect of a mandamus to swear one into an
office is not to create or confer any title not already
existing.  (High on Extraordinary Remedies, ~ 52,
and cases cited.)
~ 329. It is also clear that after there has been a
judgment of ouster given against the incumbent defacto, in a regular proceeding by quo warranto, a mandamus will be granted to compel the recognition of
such person as such officer unless some other pro-cess is provided by law.  (Commonwealth vs. County
Commissioners, 5 Rawle, 75,) And when mandamus
is asked to compel the issuing of a commission to a
person duly elected to an office, it is essential that
the relator should show a clear title to the office
claimed.  (State vs. Albin, 44 Mo., 346.)
~ 330. Mandamus will lie to compel the making




246        PRACTICE AND EVIDENCE IN
of an appointment to fill an office if the person who
is properly vested with the power of appointment
fails or refuses to act. But the writ will not be granted to compel the making of an appointment to an
office where it is apparent that the appointing power
is about to proceed in the matter, and where it is not
shown that there is an attempt to evade the law by
unnecessary delay. [People vs. Regenis of Universi:ty, 4 Mich., 98.]
~ 331. The rule is, that mandamus will lie to compel election officers to discharge purely ministerial
functions as contra-distinguished from such duties
as are quasi judicial in their character. The duties
of returning officers are chiefly ministerial, but in
the nature of the case they must exercise a sort of
judicial function in determining whether the papers
received by them and purporting to be returns, are
in fact such, and are genuine and intelligible and
substantially as required by law. But after these
questions are determined, the duty of counting the
votes as returned, and declaring the result is a ministerial duty which the proper officers are bound to
perform, and the performance of which may be compelled by mandamus. And it is not doubted that
even as to questions concerning which returning officers exercise a discretion, they can be compelled by
mandamus to act and to decide, though their discretion cannot be controlled by this means, and they
cannot, therefore, be directed by mandamus as to how
they shall decide. If they decide any such questions,
wrongfully or erroneously, the party injured has his
remedy by quo warranlo, or by such other form of
remedy as may be provided by statute.




CONTESTED ELECTION CASES.       247
~ 332. And of course it will be understood from
what has already been stated, that where, as is sometimes the case, large judicial powers are conferred
by law upon canvassing boards, mandamus will
not lie to direct or control them in the exercise of
their judicial or discretionary functions. It must be
constantly borne in mind that the office of this writ
is to compel the performance of acts which are
purely ministerial in their nature, though it may, as
we have said, be employed to compel, but not to
control, the exercise of judicial functions. This rule
being kept in view, no serious difficulty can arise
upon this subject.  [Grier vs. Shackleford, 2 Brev.,
[2d Ed.] 549. Mayor &6c., vs. Rainwater, 47 Miss.,
547.]
~ 333. In proceedings by mandamus involving
collaterally the rights of contesting claimants to an
office, the court will not review the decision of a
board of canvassers; for the reason that such decision is to be treated as conclusive, except in proceedings by quo warranto.  [People vs. Stevens, 5
Hill, 616, High on Extraordinary Remedies, Sec.
57.] In accordance with this doctrine it has been
held that where the statute directs the'board of
County Commissioners to order an election for
county officers, provided a certain number of qualified electors petition therefor, and it is made the
duty of said board to ascertain whether the requisite
number of electors have joined in such petition;
mandamus does not lie to control them in the exercise of that duty. And if they have decided the
matter and refused to order the election, mandamus
will not lie to compel them  to make such order.




248        PRACTICE AND EVIDENCE IN
[State vs. Commissioners, 8 Nev., 309.] And it is
also clear that the writ of mandamus will not be ordered to compel election officers to perform a ministerial duty before the time for its performance has
arrived. The court will not anticipate a refusal of
an officer to do his duty, even though he may have
threatened or pre-determined not to perform it.
There can be no omission, neglect or refusal to perform a duty where the time has not yet arrived for
its performance. (State vs. Harvey, 3 Kan., 88.]
~ 334. We have seen that mandamus does not lie
to compel admission to an office, and we have also
seen that it does lie to compel the proper authority
to issue a commission to the person declared elected.
There is no conflict between these two rules. The
granting of the writ to compel admission to the
office would have the effect of determining the title
thereto, but this is not the effect of the writ, when
granted to compel the issuance of the certificate of
election. This certificate, when issued by virtue of
a mandamus, has precisely the same force as if issued without such writ. In either case it is only
primafacie evidence of title to the office, and may
be attacked and overthrown by other proof. (High
on Extraordinary Remedies, Sec. 61. S/ale vs. Gibbs,
13 Fla., 55. People vs. Hilliard, 29 III., 419. In re
Strong, 20 Pick., 484. People vs. Rivers, 27 Ill.,
242. Brower vs. O'Brien, 2 Ind., 423.)
~ 335. In People vs. Hilliard, (supra,) it was held
that it is no objection to the granting of the writ to
compel the issuance of a certificate of election, that
the respondent has already issued certificates to
other parties. The court said; "We do not pro



CONTESTED ELECTION CASES.       249
pose to turn the others out of office on an application for mandamus. They are not parties to this
adjudication." On the contrary, however, it was
held in Magee vs. Supervisors,, (10 Cal., 376,) that if
the canvassers have performed their duty, and in the
exercise of their discretion have declared the result
of the election adversely to the claimant, he cannot
have mandamus to compel the issuing of a certificate to him, his remedy being by proceedings in quo
zearrano.  And this would seem the better rule
since the issuing of a second certificate under the
order of the court, as we have seen, does not affect
in any way the question of title to the office, and it
is desirable that the claimant should be put to his
remedy by quo warranto at once, and in the first instance to the end that the case may be speedily disposed of upon the merits.
~ 336. It has also been held that mandamus is the
proper remedy to compel a registering officer to
register as voters the names of persons properly
qualified.  [Davies vs. McKeely, 5 NVev., 369.)
~ 337. Where an election is held and no question
is made as to the result, the inspectors of the election have no right to consider the question of the
validity of such election, but must certify the result
and upon their failure or refusal to do so, mandamus
will lie to compel them to perform this duty. The
writ of mandamus, however, even when used to
place a person in possession of an office, confers no
right. It merely places him in possession of the
office to enable him to assert his right which in some
cases he could not otherwise do.  [Brower vs.
O'Brien, 2 Ind., 423. Moses on Mandamus, 90.




250        PRACTICE AND EVIDENCE IN
Kister vs. Cameron, el. al., 39 Ind., 488.)  A few cases may be found in which the writ of mandamus
has issued to the proper certifying or returning officer, commanding him to certify the election of a particular person by name, but this is believed to be an
improper, or at least an unprovident use of the writ.
It should be issued, if at all, simply to compel a return or certification of the result, as shown by the
proper returns, but the court issuing the writ should
not assume to determine, and in advance, who by
such returns is entitled to the office. As we have
heretofore observed, the proper use of the writ is to
compel, but not control, action by the returning officers. If the person actually elected is not returned
and certified to be elected, his remedy is plain, and
it is desirable that all questions connected with counting the votes and declaring the result should in the
first instance remain with the officers of election.
~ 338. In Kister vs. Cameron, el al, supra, it seems
that no question was made as to the fact that the relator had received a majority of the votes cast. The
inspectors declined to certify, on the ground that in
their opinion the election was void for some reason
not stated in the report of the case. Mandamus
was granted on the ground that it was not the province of the inspectors toinquire as to the validity of
the election, that question being for another tribunal,
but simply to cast up the returns, declare the result,
and issue their certificate as provided by the plain
terms of the statute, and this they were required to
do. We gather from all the authorities the following.
rules:
1. If the officers of election refuse or fail to act




CONTESTED ELECTION CASES.        251
mandamus will lie to compel them to discharge their
duties as required by statute, but in such cases the
-writ will not, as a general rule, command such officers to certify that any particular person has been
elected.
2. If there are two or more persons claiming the
office, the writ will never issue to require such officers to declare either one elected, but only to command them to execute the duties and exercise the
functions conferred upon them by law.
3. If it clearly appears that a particular person
has received the majority of the votes cast, and that
no question is made upon this point, perhaps mandamus may issue to compel such officers to certify
the election of that person by name, although this is
substantially the same thing as to order them to
certify the result according to law, and therefore the
latter form will always be found to be the best.
~ 339. Where the statute provides that the election of a public officer may be contested by " any
candidate or elector," the person instituting, such
contest must aver that he is an elector, or that he
was a candidate for the office in question. This
must appear on the face of the record, and it is not
enough that the contestant offers proof that he is
an elector. The incumbent is not bound to answer
or take notice of a complaint which does not contain
this averment.  (Edwards vs.: Knight, 81/  Ohio,
[Hammond,] 375.)
~ 340. An injunction will not lie to restrain the
proper officer from recording the abstract of the
vote of a county, upon the question of removing the
county seat, because of frauds and illegalities in con



252          PRACTICE AND EVIDENCE IN
ducting the election. The remedy for such wrongs
is by means of a contest, as provided by law. (Peck
vs. Weddell, 17 Ohio St., 271.  Ingersall vs. Berry,
14, ib., 315.) (f)
~ 341. Notice is absolutely essential to the validity of a proceeding to oust the incumbent of an office,
and proceedings instituted and carried on without
notice to the incumbent, should be treated as absolutely null and void. By notice here is not meant
any particular form or character of notice, but simply
that some kind of notice is essential. It has accordingly been held by the court of common pleas of
Philadelphia, that where a member of a municipal
legislative body has been expelled without notice or
hearing, a mandamus will be granted to compel such
body to restore him until he has had notice and a
hearing. (Duffield's Case. Brightley's Election Cases, 646.)  It was also held in the same case, that
where the council has determined after notice and
hearing, that the member has incurred a disqualification by accepting a federal office, the court will not
interfere, for the reason that the council has power
and jurisdiction to judge of the qualifications of its
members.
~ 342. Prior to the adoption by Congress, of any
statute regulating the mode of procuring evidence
(f) An adequate remedy will always be found either at law or in
equity, for frauds perpetrated against the purity of elections. If a result
has been secured by fraud, and the statute has provided no mode of
redress, it by no means follows that no redress can be had. The right
of any person claiming to exercise any public function or authority under a fraudulent election, may be tested by proceedings in quo warranto.
And doubtless if the election is to decide upon the question of levying
a tax, or the adoption of a municipal charter, or the like, all proceedings under it may be enjoined upon proof of such frauds, as will render
such election void.




CONTESTED ELECTION CASES.        253
in contested election cases, the practice was conformed as far as possible to the laws of the state,
from which any case might be brought. (Botts vs.
7ones, 1 Bartlett, 73.)  And there is no doubt but
either house of Congress should regard the laws of
the states as rules of decision, upon any point not
covered by congressional statute or federal constitution. (See case of Tennessee Representatives, 42d
Congress.)
~ 343. The act of Congress approved 19th Feb'y,
1851, "to prescribe the mode of obtaining evidence
in cases of contested elections," provides among
other things that the contestant shall "within thirty
days after said election, give notice in writing to the
member whose seat he intends to contest and in such
notice shall specify particularly, the grounds on'
which he relies in said contest." A good deal of
discussion has arisen as to what is to be understood
by the words "specify particularly the grounds on
which he relies." It is evident, however, that these
words are not easily defined by any others. They
are as plain and clear as any terms which we might
employ to explain them. Cases have arisen, and
will again arise, giving rise to controversy as to
whether a given allegation comes up to the requirement of this, statute, and it must be for the
House in each case to decide upon the case before
it. It may be observed however, that this statute
should receive a reasonble construction-one that
will carry out, and not defeat its spirit and purpose.
And perhaps the rule of construction, which will
prove safest as a guide in each case is this: A notice
which is sufficiently specific to put the sitting mem



254        PRACTICE, AND EVIDENCE IN
ber upon a: proper defense and prevent any surprise
being practiced upon him, is good, but one which
fails to do this is bad.  (Wright vs. Fuller, 1. Bartleit, 152.)
~ 344. It seems to be settled by the decisions of
the House of Representatives, that a notice is good
under the law, if it specify the number of illegal
votes polled, for whom  polled, when and where
polled, without specifying the names of the illegal
voters. l Wright vs. Fuller, supra.  Vallandigham
vs. Campbell, 1 Bartilel, 223.  Ottero vs. Gallegos. 1
Bar/telt, 177.]
~ 345. On the trial of a contested election case,
in the lower House of Congress, if the final return
is informal or insufficient, it is proper that the committee or the House, should send for and examine
the county or primary returns, and from them make
an estimate of the votes, as the judges themselves
might have done. [Case of David Bard of Pennsylvania, Cl. & H., p, 116.] It is equally true that
the House in such a case may go behind all returns
whether primary or final, and resort to any competent evidence, in order to ascertain the true state of
the vote. The same point was decided in the same
way in Chapman vs. Ferguson, 1 Barllett, 267.
~ 346. In the case of 7oseph B. Varnum of Massachusetts [C1. & H., 112,] it was held by the House
of Representatives of the 4th' Congress as follows:
1. That an allegation that fifty votes were given
by proxy, is sufficiently certain without naming the
persons in whose behalf they were cast.
2. That an allegation that "five votes were received and certified by the presiding officers, which




CONTESTED ELECTION CASES.       255
were given by persons not qualified by law to vote,"
is not sufficiently certain, because it does not give
the names of such persons. But as already shown,
it has been held repeatedly under the act of 1851,
regulating the mode of obtaining evidence in cases
of contested election, that it is. not necessary to give
the names of the persons by whom illegal votes are
alleged to have been cast.
~ 347. In Valcandiigham vs. Campbell, [1 Bartlett,
223,] the rule that a sittingmembermustuse diligence
in the preparation of his defense to a contest brought
against him, was adhered to by the committee and
the House. It was there held that the fact that the
sitting member was a member of a previous Congress, and attended to his duties as such, during a
part of the time, when by law the testimony should
have been taken, furnished no ground for an extension of time in his behalf. Also, that the fact.that
the contestant occupied or proposed to occupy the
entire sixty days after service of the answer of the
sitting member, to the notice of contest, does not
entitle the sitting member to an extension of time.
Both parties were allowed to take testimony under
the law as it then stood during the same time. And
substantially the same ruling was made in the case
of Boles vs. Edwards, [42d Congress.]  The statute
upon this subject was, however, by an act approved
January 10th, 1873, amended so as to extend the
whole time for taking evidence to ninety days, and
so as to divide the time as follows; the first forty
days to the contestant, the succeeding forty days to
the sitting member, and the closing ten days, to the
contestant, to be occupied in taking testimony in rebuttal only.




2.56       PRACTICE AND EVIDENCE IN
~348. Although the act of Congress of 1851, in
relation to taking evidence in contested election
cases, is not absolutely binding upon the House of
Representatives, yet it is to be followed as a rule
and not disregarded or departed from, except in extraordinary cases. A contestant must take his testimony under it, and in accordance with its provisions,
unless he can show that it was impracticable to do
so, and that injustice may be done, unless the House
will order a special investigation. [Brooks vs. Davis,
1 Bartlett, 244.] The statute as it now stands after
the recent amendments, affords an apportunity for
investigation, so ample and complete that it is believed that it will seldom happen that the House
will find it necessary to depart from its provisions
in order to do the most complete and perfect justice,
and it will no doubt therefore be adhered to as furnishing the best possible guide, for instituting and
carrying forward inquiries of this character.
~ 349. The Houses of Congress when exercising
their authority and jurisdiction to decide upon "the
election returns and qualifications" of members, are
not bound by the technical rules, which govern proceedings in courts of justice. Indeed the statutes
to be found among the acts of Congress regulating
the mode of conducting an election contest, in the
House of Representatives, are directory only, and
are not and cannot be made mandatory under the
constitution. In practice these statutory regulations
are often varied and sometimes wholly departed
from. They are convenient as rules of practice, and
of course will be adhered to, unless the House in its
discretion shall in a given case determine that the




CONTESTED ELECTION CASES.        257
ends of justice require a different course of action.
They constitute wholesome rules not to be departed
from without cause., ( Williamson vs. Sickles, 1 Bartlett, 288.) It is not within the constitutional power
of Congress by a legislative enactment or otherwise,
to control either House in the exercise of its exclusive right to "be the judge of the elections returns
and qualifications of its own members."  (Constitution, Art. 1, Sec. 5.) The laws that have been enacted on this subject, being therefore only directory
and not absolutely binding, would have been more
appropriately passed as mere rules of the House of
Representatives, since by their passage it may be
claimed that the House conceded the right of the Senate to share with it in this duty and power conferred
by the constitution. It is presumed however, that the
provisions in question, were enacted in the form of
a statute, rather than as a mere rule of the House
in order to give them  more general publicity and
place such directions, as were thought proper, within the reach of whomsoever they might concern.
And the constant practice on the part of the House
of varying these regulations has been regarded, no
doubt, as a sufficient protest against the power or
right of the Senate in the premises.
~ 350. The House of Representatives of the United States, may in its discretion proceed to inquire
into the validity of the election of one of its members,
without any formal contest having been instituted.
A contestant is not absolutely necessary.  (Reeder
vs. Whiifeld, 1 Bart., 189.]  If circumstances arise
which, in the opinion of the House, make it their
duty to investigate the right of a member to a seat,
17




258        PRACTICE AND EVIDENCE IN
the House may proceed upon its own motion. It
follows of course that the death of the contestant
or his withdrawal from the contest, or an attempt to
compromise between the contestant and incumbent,
will not make it obligatory on the House to discontinue the investigation.
~ 351. A census of population so classified as to
show the number of persons in each county, possessing the qualications of voters and taken by sworn
officers, under the authority of the United States,
is admissible in evidence as tending to show, approximately at least, the number of voters in any
given county at the time such census was taken, and
of course also as showing approximately the number,of voters in such county, at the time of an election,
held shortly before or after the taking of such census..(Norris vs. Handlley, 42d Congress. Niblack vs.
Walls, 42d Congress.)  But of course this is not the
most reliable sort of evidence, as there is always
great room for mistakes and inaccuracies, in the taking of the census. The census returns are by no
means conclusive, and will be resorted to only in the:absence of other satisfactory evidence, as when there
is some proof of intimidation and violence, but great
doubt and uncertainty as to how many legal voters
were by this means deprived of the right to vote.
In such a case, if it appear from the returns of a
census taken about the time of the election, that the
vote was an ordinarily full one, it may be fairly inferred in the absence of other evidence, that there
were not a large number of persons deterred from
voting at such election.
~ 352. A similiar rule to the one here stated was




CONTESTED ELECTION CASES.        259:adopted in the early case of Tallaferro vs. Hungerford, (C/. e H., 246,) where it was held that the
land list prepared under a statute of Virginia, and
required by law to give the names of all freeholders for the year prior to an election, is proper
to be considered as primafacie evidence of the number of voters in a county, but not conclusive. And
in Blair vs. Barrett, [1 Bartlett, 308,] it was held
that the city government of St. Louis, having ordered a census to be taken with statistics of nationality
and naturalization, such census, and the testimony of
the census taker, were admissible in evidence.
~ 353. The House of Representatives has shown a
disposition to give a liberal construction to the acts
of Congress in relation to the mode of conducting
cases of contested elections. They are construed
with reference more to the substantial rights of the
parties, than to the exact wording of the statute.
And it may be expected that the House will continue
so to construe these statutes, for as we have elsewhere shown, they are not absolutely binding upon
the House in any case. They are adopted only as
wholesome rules of practice, and of course a tribunal could hardly be expected to construe with great
strictness, a statute which it may in its discretion
disregard altogether.  It was accordingly held in
Kline vs. Verree, [1 Bartlett, 381,] that where the
contestant failed to specify with particularity the
grounds of his contest, he might be permitted to
specify such grounds orally. This, however, should
never be allowed in a case where the substantial
rights of the sitting member might thereby be prejudiced. As for example, if the notice is so vague as




260        PRACTICE AND EVIDENCE IN
not to put the sitting member upon his proper defense, and as not to inform'him with reasonable certainty of the nature of the case, which he is expected
to meet, it'would be altogether improper to allow
-such notice to be amended and perfected by an oral
or even by a written specification, made at the trial
and after the closing of the evidence on both sides.
If in such a case any amendment could be allowed,
it would necessarily follow that an extension of time
within which to take testimony should be ordered.
To spring a new issue upon the sitting member, of
which he has had no notice, and to try the same without permitting him to take testimony touching such
new issue; would be a course of proceeding not to
be tolerated.
~ 354. Testimony to be used in a case of contested election, in the House of Representatives, of
the United States, must under the law, as it stood
prior to the recent amendments, be taken within
sixty days from the time the answer is served, unless
further time is given by the House. Therefore a
deposition taken after the sixty days has expired, and
without the order of the House will be excluded.
(Knox. vs. Blair, 1 Bartlett, 521.  Todd vs. 7ayne,
1 Bartlett, 555.) In the case last named it was held
that notwithstanding the requirement of the statute
that notice of contest shall be served "within thirty
days after the result has been declared," yet if the
sitting member answers to a notice served before
the result is declared, he should be held as waiving
this objection and cannot avail himself of- it on the
final hearing. The true construction of the statute
allows the notice to be served at any time within the




CONTESTED ELECTION CASES.       261
thirty days; but not after the termination of that
period.
~ 355. Under a statute of Virginia, requiring that
all voters shall be free-holders, it was held that the
land books of the county were admissible in evidence
to show who were free-holders, they being regularly
certified by the clerk of the county to be correct.
These books were made out annually under the laws
of Virginia, and were intended to contain a list of
all the separate tracts of land and the owners names.
(Loyal vs. Newton, CI. & H., 520.)  These books
were undoubtedly admissible upon the same principle that census returns are admissible in evidence,
but they are only ptimafacie and proximately correct. Books and records of this character are necessarily more or less inaccurate and erroneous, and do
not have the conclusive character which attaches to
some other public records.
~ 356. For the purpose of showing that non-residents have voted, witnesses are often called to testify that persons whose names appear upon the roll
as having voted, are not known to them as residents
of the county or voting precinct, as the case may be.
This kind of evidence is admissible for what it is
worth, but it is manifest that its value must depend
upon circumstances.  If the district or territory
within which the voter must reside is large, or very
populous, and the witness has not an intimate and
extensive acquaintance with the inhabitants, the evidence will be of little value, and standing alone will
avail nothing. But on the other hand, if such district or territory is not large or populous, and if the
witness shows that his acquaintance with the inhabi



262        PRACTICE AND EVIDENCE IN
tants is such that he could scarcely fail to know any
person who may have resided therein long enough
to become a voter, his evidence may be quite satisfactory, especially if it further appears that soon after
the election the alleged non-resident voter could not
be found in the district, within the limits of which all
voters must reside. Proof of this character must at
least be regarded sufficient, to shift the burden upon
the party claiming that the vote of such alleged nonresident be counted, and require him to show affirmatively that he is a bonafide resident. It was held
under the constitution of Kentucky, which only required residence in the county, that no name should
be stricken from the polls as unknown, upon the
testimony of one witness only, that no such person
is known in the county. Also, that where a man of
like -name is known, residing in another county, some
proof direct or circumstantial, other than finding
such a name on the poll book, will be required of
his having voted in the county or precinct, where.
the vote is assailed.  (Letcher vs. Moore, Cl.   H H.,
749.) It was further held in the same case that
when the name of a particular person is found on
the poll book as having voted, proof that an individual of that name resides in the county and is a
minor, is not of itself sufficient to strike out the
vote. Some further proof, direct or circumstantial,
should be required to show that the vote was in fact
cast by such minor.
~ 357. The constitution of Kentucky provided
that votes "shall be personally and publicly given
viva voce."  In Letcher vs. Moore (supra,) it appeared
that three persons had voted for Mr. Letcher who,




CONTESTED ELECTION CASES.        263
though intelligent and able to read and write, were
deaf and dumb. Of course these persons could not
literally vote viva voce, and the question was raised
whether they were legal voters under the constitution. The committee held that their votes should
be received as clearly within the spirit of the constitution, although in reaching this conclusion, a previous decision of the Senate of Kentucky, in the
case of Williams vs. Mason (not reported) was
overruled. No doubt is entertained as to the correctness of the ruling of the committee.
~ 358. In Follettvs. Delano, (2 Bartleti, 113,) the
committee of elections of the House of Representatives expressed the opinion, that inasmuch as there
is no statute defining the mode of proving the service of notice in a contested election case in that body,
such service must be proven as any other fact in the
case, by the deposition of a witness, and that an
affidavit is not sufficient. And the committee in the
same case also expressed the opinion that inasmuch
as the statute requires the contestant to "give notice
in writing to the member whose seat he designs to
contest," and does not define the mode of service, it
must be a personal service, and that service, by leaving a copy at the residence of the sitting member is
not sufficient. These points can hardly be considered as settled, by any decision of the House, since
the case itself was considered upon its merits, notwithstanding the defective service, and it is the opinion of the author that it would not be safe to risk a
case upon this construction of the statute, which,
though perhaps technically correct, may at any time
be disregarded by a majority of the House,-as it is




264        PRACTICE AND EVIDENCE IN
quite likely to be in a case where the majority should
consider it a construction too narrow and strict to
meet the ends of substantial justice. An answer
will of course operate to waive any defect in the
service of the notice, though perhaps not in the notice itself.
~ 359. In thecase just cited it was further held that
the rule that a failure to answer is a confession of
the allegations contained in the complaint, will not
be applied to a contested election in the House of
Representatives. The reason is that the inquiry is
of a public nature, and not a case involving private
rights alone. Upon this point the committee in the
report say:
" The contestant claimed that the sitting member,
by failing to answer, must be taken to have confessed the truth of the allegations in the notice.
The statute requires of the sitting member, within
thirty days after the service, to answer such notice,
admitting or denying the facts alleged therein, and
stating specifically any other grounds upon which he
rests the validity of his election." If the contestant
and the sitting member were the only parties interested in the representation of this district, it- might
not be unfair to hold that the sitting member, upon
service of notice upon him according to law must
answer as the law requires, or by neglect or refusal,
be taken as confessing the truth of the allegations
made in conformity to law against his right to
his seat, and abide the judgment of the House
upon such confession. But the contestant and the
sitting member are by no means the only parties
interested in this representation. The electors of




CONTESTED ELECTION CASES.'265
the district, each and every one of them, have a
vital interest in that question, and no one of them
can be precluded, by any laches not his own,
from insisting that the choice of the majority shall
be regarded. No confession of the sitting member,
however it might bind him personally, can place the
contestant in the seat, unless he is the choice of the
majority, nor -deprive that majority of its rightful
representation. The sitting member may well be
deprived, by'his neglect to answer, of reliance upon
"any. other grounds upon which he rests the validity
of his election," for he has never given notice of any
such grounds; but the committee are of opinion that
the House should require proof that the sitting member has not, and that the contestant has, a majority of
the legal votes before unseating the one and admitting the other, however the sitting member may
have seen fit to conduct his own case in a contest."
~ 360. A similar ruling was made in the recent
case of Sheridan vs. Pinchback, (43d Congress.) It
is very clear that the usual judgment by default, such
as would follow a failure to answer in the courts of
the country, should not be rendered in a case of
contested election in the House of Representatives.
If the sitting member has not answered he may
well be regarded as estopped from taking testimony
or proceeding with the contest, until he shall have,
with the leave of the House, filed his answer, but the
House will not take the allegations of contestant as
true, because they are not answered. In the case of
Sheridan vs. Pinchback, the committee say, that the
case of the contestant where the sitting member
does not answer, is no stronger than if no one were




266        PRACTICE AND EVIDENCE IN
contesting his right, and the committee had been
ordered by the House to inquire whether he was
elected. This distinction between contested election
cases and other suits grows out of the fact that in.
the former the people have an interest so vital and
important, as to forbid the parties to the record to
conclude their full investigation and decision, by any
compromise or other action of theirs.
~ 361. During the progress of the rebellion, numerous cases arose in which it was alleged that members of Congress elect, were not entitled to seats.
because of disloyalty and inability truthfully to take
the oath prescribed by the act of Congress, of July
2d, 1862, and known as the test oath. The rule which
the House adopted for the determination of these:
cases, is stated as follows in the Kentucky cases.,
(2 Bartlett, 368):
"While the committee entertained no doubt that
it is the right and duty of the House to turn back
from its very threshold every one seeking to enter
who has been engaged in armed hostility to the government of the United States, or has given aid or
comfort to its enemies during the late rebellion, yet
we believe that in our government the right to representation is so sacred that no man who has been duly
elected by the legal voters of his district, should be
refused his seat upon the ground of his personal
disloyalty, unless it is proven that he has been guilty
of such open acts of disloyalty that he cannot honestly and truly take the oath prescribed by the act
of July 2, 1862; and further, that the commission of
such acts of disloyalty to the government should not
be suspected merely, but should be proven by clear




CONTESTED ELECTION CASES.       267
and satisfactory testimony, and that while mere want
of active support of the government, or a passive
sympathy with the rebellion, are not sufficient to exclude a person regularly elected from taking his
seat in the House, yet whenever it is shown by proofthat the claimant has, by act or speech, given aid or
countenance to the rebellion, he should not be permitted to take the oath, and such acts or speech need
not be such as to constitute treason technically, but.
must have been so overt and public, and must have
been done or said under such circumstances, as
fairly to show that they were actually designed to,
and in their nature tended to, forward the cause of
the rebellion."
The practice in these cases was to consider the
question of the loyalty of the member elect, before.
allowing him to take his seat and be sworn, in all
cases where charges of disloyalty and of inability
truthfully to take the oath, were made to the House
by a responsible party-as for example, by a member or member elect of the House.
~ 362. Record evidence is of course admissible
on the trial'of a case of contested election, in the
House of Representatives of the United States, to,
the same extent and for like purposes as in Courts
of Justice, and in the trial of ordinary civil actions.
The question may be raised whether evidence of'
this character can be offered for the first time on
the trial? It may be said that it should be produced
before an officer taking testimony, in the presence
of the opposite party, and put in evidence within the
time required for completing the taking of the testimony in the case. And4his is undoubtedly the cor-.




268.PRACTICE AND EVIDENCE IN
rect practice, for if evidence of this character is to
be used, it is but fair that the party against whom it
is to be offered should have notice of it in time to
offer evidence in response to it. It may therefore
be laid down as the correct rule upon the subject,
that a party desiring to use a record as evidence in
such a case, shall at a time and place, which has been
fixed for taking testimony, and of which due notice
has been given, offer such record or a duly authenticated copy thereof, in evidence, and cause it to be
spread upon the record. It is impossible here to
designate the particular documents, papers or books,
which are included in the term "record evidence,"
or to specify the particular mode of authenticating
copies thereof, so as to make them  admissible.
These must depend largely upon local customs and
laws. It is perhaps enough to say that any record,
or certified copy, which would be admissible as evidence in the courts of justice of the country, where
a similar issue is involved, may be admitted in a contested election case, in the House of Representatives.
~ 363. A statute of Ohio required tally sheets to
be kept, and the board of canvassing officers were
required to certify and return the vote "as shown by
the tally sheets."  In Follett vs. Delano, which arose
under this statute, it was held that although the
return might be so defective as to be unreliable, as
evidence, yet if it did not appear affirmatively, that
the tally sheets were also defective and unreliable, it
must be presumed that they were correct. And it
was, therefore, the duty of the contestant in order
to make out his case, to put in evidence both the
returns and tally papers, and show that neither




CONTESTED ELECTION CASES.         269
afforded satisfactory evidence of the true result.
(2 Bartlett, 113.) This was a correct ruling under
the Ohio statute, but it must not be assumed that it
is authority for any case not arising under a similar
law. It was the duty of the contestant in that case,
to attack the tally papers.as well as the return, because the tally papers were made by statute, substantially, a part of the return. They were papers
to accompany the return. They were to be certified
and sent in with the return, and they were required
to show the time and place of holding the election;
the persons by whom it was conducted; the number
of voles cast andfor whom. It might very well happen that these papers would supply informalities and
defects in the returns themselves, and as they were
not produced in evidence, it was properly held that
they were presumed to be correct and formal, and
being so, that they did afford sufficient proof of the
result in that case. But ordinarily, where the return
is attacked and set aside, it is not necessary for the
contestant to go further and set aside all the other
election papers. The general rule is that when the
return is set aside, both parties must prove their
votes by other evidence. The exception to this rule
is where, there are papers to accompany the returns,
which are in fact a part of it, and which would, if
formal, cure the defect in the return. In such a case
these accompanying papers must be produced.
These suggestions of course apply only to cases
where returns are attacked on the ground of informality. Where the-attack is made upon the ground
of fraud or the like, the court or tribunal having
jurisdiction, will proceed with the inquiry, without




2 70       PRACTICE AND EVIDENCE IN
reference to what appears upon the face of the
returns.
~ 364. It was held by the majority of the Committee in the House of Representatives, in Koontz
vs. Coifroth, (2 Bartlett, 23,) and also in Fuller vs.,
Dawson, (Ib., 126,) that returns were void and should
be rejected if the certificates of the oaths of the election officers were wanting. It must now, however,
be regarded as settled, that if the returns are otherwise regular, they are not to be rejected because it
does not appear that the officers were sworn. If
the contrary does not appear it will be presumed
-that they were sworn, as the law directs, and even
if it be shown that they were not sworn, their acts
are not void for that cause alone. (Barnes vs.
Adams, 2 Bartlett, 760,) and cases there cited.
~ 365. It is impossible to state more definitely
than we have done, the general rule which should
govern in determining whether a return should be set
aside, and the parties on either side be required to
prove their actual vote by other evidence. The rule
is that the return must stand until impeached, i e. until shown to be worthless as evidence,-so worthless
that the truth cannot be deduced from it. In practice it will be found necessary to apply this rule to
an infinite variety of facts and circumstances. The
following are examples of its application. Where it
was clearly shown that the contestant received one
hundred and seventy votes, and the return only gave
him one hundred and forty-three votes, and there
was other evidence tending to show actual tampering
with the ballot box; the return was set aside. ( Waskburn vs. Voorhies, 2 Bartlett, 54.)




CONTESTED ELECTION CASES.      271
~ 366. In the same case, the testimony concerning
another precinct, consisted wholly in a discrepancy
between the number of votes actually cast for contestant, as shown by the testimony of voters, and
the number returned for him. The difference was
twelve votes, and in the absence of any proof of
fraud, the return was not rejected, but was corrected
and allowed to stand. In Reed vs. yulian, (2 Bartleft, 822,) the discrepancy between the vote proven,
as cast for the sitting member and the vote returned
for him, being very considerable, and there being
other proof tending to show fraud, the return was.set aside.
~ 367. Where the place of voting in an election
precinct in the city of New York, was not designated
or published until the day before the election, so that
many voters were not advised of the place, and
where the inspectors were in violation of law appointed from non-residents of the precinct, and
where the board did not meet at the place designated
by law, but selected their own place of meeting, giving no notice to electors, where they might be heard,
and where the election was not held at the place
designated, but "somewhere near" it, the people having great difficulty in finding the place, and where
under these circumstances the vote was unusually
large, and there was strong presumptive proof that
a part of it was fraudulent; the return was set aside.
(Dodge vs. Brooks, 2 Bartlett, 78.) In the report of
this case will be found several examples of returns
rejected, and of some attacked and not rejected for
want of sufficient proof, but the details are too numerous and complicated to be inserted here with
profit.




27 2       PRACTICE AND EVIDENCE IN
~ 368. To set aside the returns of an election is
one thing; to set aside the election itself is another
and very different thing. The return from a given
precinct being set aside, the duty still remains to let
the election stand, and to ascertain from other evidence the true state of the vote. The return is only
to be set aside, as we have seen, when it is so tainted
with fraud, or with the misconduct of the election
officers, that the truth cannot be deduced from it.
The election is only to be set aside when it is impossible from any evidence within reach, to ascertain the
true result,-when neither from the returns nor from
other proof, nor from all together, can the truth be
determined. It is important to keep this distinction
in mind.
~ 369. A statute of Alabama empowered a "board
of supervisors of elections" to hear proof upon
charges of fraud &c., and upon sufficient evidence,
to reject illegal and fraudulent votes cast, "which
rejection so made as aforesaid" the statute declared
"shall be final, unless appeal be taken within ten
days to the probate court." The House of Representatives of the United States in case of Norris vs.
Handley, (42d Congress,) refused to be governed by
this statute, in so far as it made the decision of the
board final. Upon this point the committee's report
says:
"In the opinion of the committee it is not competent for the legislature of a State to declare what
shall or shall not be considered by the House of
Representatives as evidence to show the actual vote
cast in any district for a member of Congress, much
less to declare that the decision of a board of county




CONTESTED ELECTION CASES.       27'3
canvassers, rejecting a given vote, shall estop the
House from further inquiry. The fact, therefore,
that no appeal was taken from the decision of the
board of canvassers, rejecting the vote of Girard
precinct, cannot preclude the House from going
behind the returns and considering the effect of the
evidence presented."
~ 370. Concerning the effect which should be
given to the decision of a board invested by statute
with power to hear proof of fraud, and reject votes,
the committee in the same report used this language:
"We have already seen that the statute of Alabama confers upon this board authority to revise the
return of the vote of the several precincts, and, upon
sufficient proof, to throw out such as in their judgment are illegal or fraudulent. Although this is an
extraordinary, not to say a dangerous, power when
placed in the hands of a board of this character,
with such inadequate facilities for obtaining legal
evidence and deciding upon questions of fraud, yet
it is believed by the committee that the action of such
a board under the statute in question, and in pursuance of the power.conferred thereby, is to be regarded as primafacie correct, and to be allowed to stand
as valid until shown by evidence to be illegal or unjust."
~ 371. In the report of the committee of elections
in Gooding vs, Wilson, (42d Congress,) several important rules of evidence applicable to cases of contested elections were laid down, as follows:
"Evidence which might have been sufficient to put
the voter to his explanation, if challenged at the
polls, is not deemed sufficient to prove a vote illegal
18




274        PRACTICE AND EVIDENCE IN
after it has been admitted. Nor has the mere statement by a witness that a voter was or was not a
resident, without giving facts to justify his opinion,
been considered sufficient to throw out such a vote.
The testimony shows a number of instances where
a witness would state positively the residence or
non-residence of a voter on some theory of his own,
or some mistake of fact, when other testimony would
show with entire clearness that the vote was legal.
After a vote has been admitted, something more is
required to prove it illegal than to throw doubt upon
it. There ought to be proof which, weighed by the'ordinary rules of evidence, satisfies and convinces
-the mind that a mistake has been made, and which
the House can rest upon as a safe precedent for like
cases."
~ 372. Of course some weight is to be given to
the decision of the judges of the election, whose
province it is in the first instance to admit or exclude
votes. Their action is to be presumed correct until
it is shown to have been erroneous. The other rule
stated above is equally sound. Whether a person
is, or is not, a resident of a particular place is often
a question of law as well as of fact. Unless the
facts are stated, the question, in so far as it is a question of law, cannot be determined, and that question
is not for the witness to decide, but for the court.
~ 373. The courts will not undertake to decide
upon the right of a party to hold a seat in the legislature, where by the constitution each House is made
the judge of the election and qualifications of its own
members, but a court may by mandamus, compel the
proper certifying officers to discharge their duties




CONTESTED ELECTION CASES.        275
and arm the parties elected to such legislative body
with the credentials necessary to enable them to assert their rights before the proper tribunal. And,
inasmuch as canvassing and returning officers act
ministerially and have no power to go behind the
returns, or inquire into the legality of votes cast and
returned, a court will by mandamus compel them
to declare and certify the result as shown by /ke
returns, because that is their plain duty, but the
award of a certificate of election under such mandate, will not conclude the legislative body in determining the election.  (O'Farrell vs. Colby, 2 Minn.,
180.)
~ 374. The actions provided by the statutes of
most of the States to try the right to an office are
in the nature of a quo warranto at common law.
They differ in the formula of proceeding from proceedings by information, or by writ of quo warranto,
but they are, as a general rule, in substance the
same, and governed by substantially the same rules
which regulated proceedings under the prior practice. Such was the ruling under the statute of New
York, which is not unlike the statutes of most of the
other States.  (People vs. Pease, 30 Barbours, 588.)
~ 3T7. Where the statute creates a board for the
purpose of determining election contests, and confers
upon such board exclusive jurisdiction in such cases,
the courts are deprived of jurisdiction to pass upon
the results of any such contests. But in such a case
the proper court may, by mandamus, compel such
board to organize and proceed according to law
to the discharge of its official duties.  (Batman vs.
McGow an, 1 M3fet., Ky., 533.)




276        PRACTICE AND EVIDENCE IN
~ 376. The statute of Kentucky, under which this
case arose, provided for a board to be composed of
the presiding judge of the County Court, the clerk
thereof, and the sheriff. It also provided as follows:
"but if either is a candidate, he shall have no -voice
in the decision of his own case. If from any cause
two of the before named persons cannot, in whole or
in part, act in comparing the polls, their places shall
be supplied," &c. Under this statute it was held
that the board must be composed of persons entirely free from any interest, and that the sheriff and
coroner, both being candidates, could not act. It
would be a dangerous practice to permit two candidates to act upon such a board, for although neither
one of them could vote for himself, yet they might
vote for each other. They might thus have a common interest to subserve, or they might combine together to aid each other. The policy of all such
legislation is to guard against improper combinations, and to secure just and impartial decisions.
~ 377. Where notice of contest is to be given
within a given number of days after the determination of the result, the true rule for computing the
time is to include the first and exclude the last day,
or vice versa. Hence it was held in Kentucky that
where the certificate of election was issued on the
sixth day of the month, and notice of contest was
served on the sixteenth day of the same month,
there was not ten days notice as required by law.
(Batman vs. Magowan, supra.)
~ 378. In the case of Bennett, petitioner, (32 Maine,
508,) it is held that under a statute which requires
that "the Governor and Council shall open and com



CONTESTED ELECTION CASES.        277
pare the votes returned," &c., the act of opening
and comparing such votes is an official duty to be
performed by the executive department. And it
-was accordingly held in that case that the courts of
the State could not entertain the inquiry whether
that duty had been correctly or incorrectly performed, and a mandamus to compel the Governor and
Council to certify the election of the petitioner to
the office of County Commissioner, was refused,
upon the ground that the judiciary could not control
the executive department of a State, in the performance of its official functions. It is very clear that
this ruling was correct, for mandamus will not lie to
control the action of any board or officer, in determining the result of an election. But it does not
follow that because the executive of the State and
the Council are constituted the returning board,their conclusions are final. If a board composed of
the Governor and Council shall commit an error
either by accident or design, or by a misconstruction of the law, in determining the result of an election, the party injured can undoubtedly have his
remedy in the courts of justice, the same as if the
result had been declared by a board composed ot
other persons.
h~ 379. The fact that a person has received the
certificate of election to an office, and entered upon
the discharge of the duties thereof; does not oust
the proper court of jurisdiction to try the title to the
office. The certificate issues upon the firima facie
case as shown by the returns, but the court may go
behind the returns, and upon the merits find a different result. (Ex parle Ellyson, 20 Gratt, Va., 10.)




278        PRACTICE AND EVIDENCE IN
And in Virginia the jurisdiction of the courts is held
not to be limited to cases of contest between com —
peting candidates. Under the law of that State an
election may be contested, although but one person:
was voted for at the election.  (lb.)
~ 380. The rule which admits in evidence on the
trial of a case of contested election, the original tally
sheet, duly certified by the officer of election, as
prima facie evidence of the election of the person,
for whom it shows a majority of the ballots to have
been cast, was reaffirmed in Ohio, in State vs. Donnewirkh, (21 Ohio, 216.)  We have already called attention to the provisions of the statute of Ohio, in
relation to the tally sheets to be kept by the officers
of the election, duly certified, and returned. And it.
may be observed here that the admissibility, and
value of the election papers, depends somewhat upon.
the statutes governing the election in question.
But generally, all papers required by law to be kept
in connection with the conduct of an election, may
be received in evidence upon being properly identified.
~ 381. While a continuance or postponement for
a brief period of time may be allowed in a contested
election case, where the court or tribunal trying the
same, shall in its discretion believe that the ends of
justice will be subserved thereby, yet the ordinary
rules governing applications for continuances, in the
nature of the case, cannot apply to a litigation of
this kind. The proceedings must be regarded as in
their nature so far summary, as to take them out of
the operation of the general rule, which allows continuances from term to term, in the discretion of thecourt.  (Kellar vs. Chapman, 34 Cal., 635.)




CONTESTED ELECTION CASES.       279
~ 382. In a case of quo warranlo instituted for
the purpose of trying the right of an individual to
hold a public office, the people are understood to be
interested as a body in the investigation, and therefore the Attorney General or other officer holding a
similar relation to the public, must represent the
people, and is the only person whose stipulation,
can be acted upon so as to affect the people. It was
accordingly held in Michigan, that the court should
not consider a statement of facts agreed to between
the relator and the respondent, and not signed by
the Attorney General. (Peoyple vs. Pratt, 15 Mich.,
184.  Crawford vs. Molitor, 23 Mich., 342.)  And,.as we have already seen, substantially the same rule
prevails, in all cases of contested election, whether
in the form of a quo warranto, or by statutory proceedings.
~ 383. In INewcum  vs. Kirlley, (13 B. Monroe,
515,) it was held that the votes of two electors who
according to the testimony of several witnesses,
would have voted for contestant if the polls had not
been closed too soon, could not be counted as if
cast. It did not appear.that the electors in question
had presented themselves at the proper voting place,
within the hours during which the law required the
polls to be kept open, for the purpose of voting for
contestant, and that after doing all that was in their
power they were prevented by the fault of the election officers, from so voting. If these facts had appeared the question would have been very different
from the one decided. The court seems to have
placed great stress upon the fact that "their votes
were not offered to, nor taken by the officer en



280        PRACTICE AND EVIDENCE IN
trusted by law with the office of receiving and recording them," and very properly, as that was a controling fact. The Jtrue rule upon this subject has
been stated in another connection and is this: In
order that a ballot not actually cast, shall be countedas
if cast, it must appear that the voter actually offered
to cast it, and was prevented from so doing without
fault on his part, or if he does not actually present
his ballot to the officers of the election, that he endeavored to approach the polls for that purpose, and
used due diligence in endeavoring to reach the polls,
but was prevented from so doing. Doubtless a rule
much more lax than this, has occasionally been
adopted in legislative bodies, but every departure
from this rule as here stated is, and must be, both
erroneous and dangerous.
~ 384. Where a statute provided that the grounds
of contest "must be verified by the affidavit of the
contesting party, that the matters and things therein
contained are true."  It is sufficient if the ordinary
form of verification is followed, viz: that the statement is true except as to matters therein set forth
on information and belief, and as to those matters
affiant believes it to be true. This has been held to be
a substantial compliance with such a statute, and it
has been well said that to require the contestant to
make oath to the absolute verity of every averment
of the statement or petition, would prevent the contest of an election in almost any conceivable case
and would work a'practical abrogation of a beneficial law. In the nature of the case, many of the
facts to be averred must necessarily be derived from
others and therefore must be stated upon informa



CONTESTED ELCETION CASES.       281
tion and belief only.  (iKirk vs. Rhoades, Supreme
Court of California, Oct. Term, 1873.)
~ 385. The mode of proceeding when a contested
election case is before a legislative body, is generally
prescribed by statute, or by the rules of such body.
In the absence of any such statutory regulation, and
in the absence of any standing rule upon the subject, the proceedings will be such as the body itself
may prescribe for each particular case, and they must
include due and reasonable notice to the incumbent
of the office, and a fair opportunity for adducing
proofs and being heard on both sides. And no
notice can be considered "due and reasonable," which
does not inform the incumbent with sufficient certainty to prevent any surprise upon the trial, of the
grounds of the contest. The incumbent will also
be required to answer, so that the issue may be understood, both by the parties themselves and by the
body which is to try the case.
~ 386. In Reed vs. Kneass, (2 Parsons, 584.
Brzightley's Election Cases, 366,) it was insisted by
counsel that a voter should not be permitted to testify as to the person for whom he has voted at an
election. It was contended that the constitutional
provision that "all elections shall be by ballot," was
not simply intended as a security to the elector for
the free and independent exercise of the right of
suffrage, but that from considerations of public policy
it should be held to prevent the voter, under any
circumstances, from disclosing before a judicial or
other tribunal how he voted. But this point was
overruled, and it was held that while the voter has
the privilege of preserving the secrecy of his ballot




282'    PRACTICE AND EVIDENCE IN
by refusing to testify to its contents, he is at libertyto waive that privilege. If it were otherwise it
might often be impossible to bring to light the darkest frauds. It would be a strange perversion of the
rule which preserves the secrecy of the ballot,' for
the purpose of encouraging free and independent
voting, to make it serve to shield the fraud and corruption of those who would, by tampering with or
changing ballots, after they are cast, altogether deprive the majority of the electors'of their choice.
In the case just cited two hundred and thirty witnesses were examined and testified that they had
each voted at a given precinct for W. B. Read, forDistrict Attorney, whereas, according to the official
returns, he had received but one hundred and twenty votes therein. This mode of attacking and impeaching a return has been frequently recognized as
proper, and this kind of evidence as competent.
(Reid vs. yulian, 2 Bar/ledl, 822. Loyal vs. Newton, 1 do, 522.)
~ 387. It is undoubtedly the policy of the law not:
to throw too many obstacles in the way of investigating the correctness and bonafides of election returns. On this point the Court in Reed vs. Kneass(supra,) very justly observe.
"The true policy, to maintain and perpetuate the
vote by ballot, is found in jealously guarding its pu —
rity, in placing no fine drawn metaphysical obstructtions in the way of, testing election returns charged
as false and fraudulent, and in assuring to the people
by a jealous, vigilant and determined investigation
of election frauds, that there is a saving spirit in the
public tribunals charged with such investigations.




CONTESTED ELECTION: CASES.       283
ready to do them justice if their suffrages have been
tampered with by fraud, or misapprehended through
error."
~ 388. Concerning the admissibility of the ballots
themselves, in evidence, in a case of contested election, Judge Cooley, in his Constitutional Limitations,
(p. 625,) has this to say:
" But back of this prima facie case, (made by the
certificate of election,) the Courts may go, and the
determinations of the State board may be corrected
by those of the district boards, and the latter by the
ballots themselves, when the ballots are still in existence, and have been kept as required by law. If, however, the ballots have not been kept as required by
law, and surrounded by such securities as the law
has prescribed, with a view to their safe preservation as the best evidence of the election, it would
seem that they should not be received in evidence
at all, or, if received, that it should be left to the jury
to determine, upon all the circumstances of the case,
whether they constitute more reliable evidence than
the inspectors' certificate, which is usually prepared
immediately on the close of the election, and upon
actual count of the ballots as then made by the officers whose duty it is to do so."
~ 389. It matters not how high and important an
office may be, an election to it must be by the majority or plurality of the legal votes cast. And if
any one without having received such majority or
plurality intrudes himself into an office, whether with
or without a certificate of election, the Courts have
jurisdiction to oust him, unless some other tribunal
has been clothed with this power to the exclusion of




284        PRACTICE AND EVIDENCE IN
the Courts. The question arose in the case of Governor Barstow of Wisconsin, whether the person occupying the office of chief executive of a State can
be required to appear before the Courts and defend
against another claimant for that office. It was contended that the three departments of the State government were equal, co-ordinate, and independent of
each other, and that each department must be the
judge of the election and qualifications of its own
members, subject only to impeachment and appeal
to the people; that therefore the question as to who
is entitled to the office of Governor, can in no case
become a judicial question. But this doctrine received no countenance from the Court to which it
was addressed, and it is believed to be without the
support of any judicial authority.  If adopted it
would leave no peaceable and constitutional means
for ousting a successful usurper from either of the
departments of the State government. (Cooley's
Const. Lim., 624-5, note 1.)
~ 390. In People vs. Cicote, (16 Mich., 283,) the
opinion is expressed that one claiming a public office
has a constitutional right to a trial by jury, and that
this right cannot be taken from him by any law
which shall undertake to make the decision of a canvassing board final. But see Ewing vs. Filley, 43
Penn. Stale, 384.  Commonwealth vs. Leech, 44 do,
332.
~ 391. We have already seen that when a return
is shown to be fraudulent and set aside, it proves
nothing, and that other evidence must be resorted to,
to show the number of votes cast and for whom
cast. It is very clear that if the returns are set aside




CONTESTED ELECTION CASES.      285
no votes not otherwise proven, can be counted.
And if there are three candidates voted for at a
given precinct, and the return is set aside, it is not
enough to show the whole number of.votes cast, and
the number cast for two of the three candidates; it
will not be presumed that the third candidate received the remainder. In such a case each candidate
must prove, by calling the voters as witnesses or
otherwise, the number of votes received by him.
Thus in a recent case in New York, it appeared that
at an election for Mayor of the city of Albany, seven
hundred and twenty-nine votes were given according
to the poll list. While the votes were being counted
by gas light (having been turned from a box upon
the table,) the light suddenly went out, and before
the gas was relighted, some of the ballots were abstracted, so that upon completing the canvass only
six hundred and fifty-two ballots for Mayor were
found. Of this latter number
Geo. H. Thatcher received        460
Edmund L. Judson   "             113
Thomas McCarty    "               79
Upon the trial of a contest, growing out of this
election, two of the above named candidates, Judson
and McCarty, made proof of their vote, from which
it appeared that Judson received two hundred and
McCarty one hundred and thirty-four votes. —
Thatcher made no proof of his vote, but claimed
that as the whole number of votes cast was shown
to have been seven hundred and twenty-nine, he was
entitled to the difference between that number and
the combined vote proven for the two other candidates. This position was not upheld by the Court,




28 6       PRACTICE AND EVIDENCE IN
and was clearly untenable. It appears from the report of this case that the only question made was,
as to whether Thatcher's vote should be ascertained
by deducting the combined vote proven for the
other candidates from  the number of votes canvassed, to-wit: six hundred and fifty-two, or from
the number actually cast, to-wit: seven hundred and
twenty-nine. The Court below had allowed Thatcher the difference between the sum of the votes cast
for the other candidates, and the whole number cast
and the Supreme Court having held this to be error,
went no further. From all that appears in the report of the case Thatcher did not prove any vote at
all. He relied upon the return, but that should have
been set aside, if, as appears, to have been the case, a
gross fraud had been perpetrated in the abstraction
of part of the ballots before the canvass, and in
substituting others, the number abstracted, and the
number substituted, being wholly uncertain. Such
a return cannot be corrected by proof. It must be
wholly disregarded, and the vote otherwise proved,
if possible, and if other proof is not possible, the
election is void.  (People ex ret, 7udsow vs. Thatcher, 7 Lansing, N. Y., 274.)
~ 392. It is not necessary, in order to set aside a
return for fraud, that it be shown that the officers of.elections participated in the fraud. If third persons
unlawfully possess themselves of the ballot box during or after the close of the election, before the canvass, and destroy the ballots or a portion of them, or
abstract some of the ballots and place in the box
others, or in any manner so tamper with the ballots.as to change or render uncertain the result; such




CONTESTED ELECTION CASES.        287
facts being proven, will render the canvass and return void, although the canvassing officers may have
had no connection with the fraud, and no knowledge
of it.  (People vs. Cook, 8 N. Y., 86. People ex rel
7udson vs. Thatcher, supra.)
~ 393. It has been held by the Supreme Court of
Mississippi, that " evidence that one of the registrars
being intoxicated, took a portion of the ballots in a
handkerchief away from the other registrars, and
did not return them  until next morning, is not admissible without showing that some of the ballots.had been lost or altered, or that the plaintiff was in.some manner affected thereby."  (Pradat vs. Ramsay, 47 Miss., 24.)  This decision was put upon the
ground that the misconduct of the officer was a
mere irregularity, and did not, therefore, primafa-.cie, affect the result; but this was evidently a misapplication of that rule. One of the most important.and imperative requirements of the law of elections
is, that the ballots from the time they are cast until
they are canvassed, must be safely and securely
kept.  Frauds upon the ballot box are very frequently perpetrated by tampering with the ballots
-after they are cast, and before they are counted. It
is for this reason that in many of the States there
-are statutes requiring that the ballots be publicly
canvassed, immediately upon the closing of the
polls. These are most excellent statutes, and the
author has found with surprise and regret, that in
several of the States there are laws allowing the
election officers to hold the ballot boxes a number
of days before making public the canvass. If such
laws had been framed for the purpose of enabling




288        PRACTICE AND EVIDENCE IN
corrupt parties to perpetrate frauds, they could
scarcely have been more aptly framed.  (Watllace
vs. Simpson, 42d Congress.) It is clear that where
the law which requires the ballots to be safely and
securely kept until canvassed, and the result announced, has been so grossly violated as to have
afforded opportunity for fraud or tampering, the burden of proof should be shifted. If the ballots have
been kept according to law, the presumptions are
all in their favor, but if a drunken man has been allowed to carry them away and keep them in an exposed place over night, as in Pradat vs. Ramsay, supra, the presumption is against them, and proof
should be required that they are in fact the real ballots cast. In all such cases, the evidence should go
to the jury, and they should determine upon the
whole case, whether the ballots counted were in fact
the same ballots cast.
~ 394. The practice in cases of contested election
in the House of Representatives of the United States
is not, and perhaps never can be, very definitely settled, for the reason that each House is the final
judge of all questions arising in such cases, and neither House is absolutely bound either by the action
of any previous House, or by the statute itself.
The statute, however, as we have seen, is regarded
as a rule of decision, and as such is generally followed, and should never be departed from without
the very strongest reasons.
In addition to what has already been said touching the practice in these cases, the following suggestions are made concerning the mode of instituting and carrying on a contest, under tho statutes




CONTESTED ELECTION CASES.        289
regulating contested elections in the House of Representatives:
1. Within thirty days after the result of the election in a district has been determined by the proper
authority, the contestant must serve the returned
member with notice of contest. This notice must
be:in writing, and must specify particularly the
grounds upon which the contestant relies.  (Revised
statutes, Sec. 105.) The period of thirty days within
which such notice of contest may be given, begins
to run from the time when the result of the election
"' shall have been determined" by the proper board
or officer. The statutes of the several States provide for canvassing the votes cast for Representatives in Congress, and for declaring the result,.and
these statutes must be consulted in each case to determine the question, when, how, and by whom the
result is to be determined and declared. It is no
doubt true, that for the purpose of fixing the time
when the thirty days begin to run, there must be
not only a decision, but a promulgation of the result, for if the result was kept secret after it was
privately ascertained, and if it was in fact not communicated to the contestant, he could not be required to give notice. The promulgation need not
be in any formal way, unless a formal proclamation
or other publication is required by statute. It is
only necessary that it be made known in some manner.  (Gunter vs. Wilshire, 43d Congress.)  The
statute is silent as to the manner of the service of
the notice; it declares that the contestant shall "give
notice in writing," &c. In Follett vs. Delano, (2
Bar/lett, 115,) the committee expressed the opinion
19




290        PRACTICE AND EVIDENCE IN
that the correct construction of the statute would
require personal notice, and that service made by
leaving a copy at the residence of the sitting member, would not be good. Undoubtedly the service
should be made personally upon the returned member, if this is practicable; but if by reason of his absence, or his avoidance of service, or for any other
cause personal service cannot be made, then undoubtedly the notice may be served in the manner
provided by the statute of the State for serving process. It is clear that the House should hold service made under these circumstances, in the manner
pointed out by the local law for serving process, to
be sufficient, because otherwise the incumbent might
by avoiding personal service, prevent a contest altogether. Another question is, how shall the service
of notice of contest be proved?  Here again the
act of Congress is silent. The affidavit of the person making the service has generally been taken,;but in Follell vs. Delano, supra, the sufficiency of
this mode of proof was denied. Where the returned member answers, he waives any informality
in the service, or proof of service, but where he
does not, the safe practice is for the contestant to
call as a witness, the person who has made the service, and prove the fact of service, as he would
prove any other fact in the case.
2. The returned member must, within thirty days
from the time when he is served with the notice of
contest, answer the same. The answer must be
served upon the contestant. This may be done by
leaving a copy with him, or if he be absent, by serving it in the same manner as required for serving




CONTESTED ELECTION CASES.       291
the notice of contest. The answer may deny or admit the allegations of the notice, and may state specifically, any other grounds upon which the returned
member rests the validity of his election.  (Revised
Sfllutes, Sec. 106.)  The statute makes no provision
for further pleading, but the contestant may of
course, if he chooses to do so, serve the returned
member with a reply to any new matter in the answer. This, however, is not necessary. Inasmuch
as the notice and answer are the only pleadings recognized by the statute, no further pleading can be
required, and the new matter contained in the an-:swer must be proven, to avail anything, whether it
is formally denied or not.
3. The statute allows ninety days in which to take
testimony in a contested election case, and requires
that it be divided between the parties as follows.
The contestant shall take testimony during the first
forty days, the returned member during the succeeding forty days, and the contestant may take testimony in rebuttal only, during the last ten days.  (Revised Statutes, Sec. 107.) The period of ninety days
within which testimony may be taken begins with
the date of the service of the answer of the returned member upon the contestant.  (See act of
February, 1875.)
4. The statute provides for taking testimony in
contested election cases, either within or without the
congressional district.  In either case the notice
provided for by Sec. 108 of the revised statutes, must
be given. By Sec. 109, it is provided that testimony
may be taken at two or more places at the same
time. The evident purpose of the statute is to ena



292        PRACTICE AND EVIDENCE IN
ble the parties to complete the taking of testimony,
within the time prescribed. The officers before
whom testimony may be taken, are those named in
Sec. 110 of the Revised Statutes, and the same officers are authorized to take depositions of witnesses
residing out of the reach of a subpoena. (Sec. 117.)
The party desiring to take testimony must give the
notice required by Sec. 108, to his adversary, and
must also apply to the officer before whom the testimony is to be taken, to issue a subpoena. The officer thus applied to, is required to issue his subpoena
directed to all such witnesses as shall be named to
him, requiring their attendance before him at some
time and place named in the subpoena. The subpcena should follow the notice in giving names of
witnesses, and fixing time and places.  (Secs. 108,
109, 110, 111.)
5. If neither of the officers named in Sec. 110, are
residing in the district, then any two justices of the
peace may take testimony. (Sec. 113.) Depositions
may be taken by consent, without notice, and before
any officer authorized by law to take depositions
i:n common law, or civil actions, or in chancery.
(Sec. 113.)  Every subpoena must be served by a
copy thereof, delivered to the witness, or left at his
usual place of abode at least five days before the
day on which his attendance is required, and every
witness must be examined within the county in which
he resides, or may be served. (Secs. 114, 115.)
Witnesses failing to attend and testify in obedience to a subpoena duly served, unless prevented
by sickness or unavoidable necessity, are liable in
damages, and also to indictment and punishment for
a misdemeanor.  (Sec. 116.)




CONTESTED ELECTION CASES.         293
6. The statute further provides for taking the dep-,ositions of witnesses residing outside of the district
and beyond the reach of a subpoena. Depositions
outside of the district may be taken before any officer authorized to take testimony in contested election cases.  [Sec. 117.]
7. The notice to take depositions of witnesses residing outside of the district and beyond the reach
of a subpoena, is the same notice required to be
given for taking the testimony of witnesses found
within the district, and the substance of the notice,.and the manner and time of its service are specified
in Sec. 108.
8. When a party to a contest receives' the notice
provided by law of the intention of his adversary
to take depositions either within or without the district, he is at liberty to name an officer [having authority to take depositions in such cases,] to officiate
with the officer named in the notice, and if both
officers attend, the depositions shall be taken before
them both, sitting together, and be certified by both.
But if only one of such officers attend, the depositions may be taken before, and certified by him
alone. At the taking of testimony by deposition
or otherwise, either party may appear in person or
by attorney. [Secs. 118 and 119.]
9. As to the manner of the examination of witnesses the statute is not very clear.  (See Sec. 120.)
The language is, that "all witnesses who attend" &c.,
"shall be examined by the officer," &c. This should
no doubt be construed simply as requiring the examination to be conducted before the officer, and not
-as requiring him to propound the questions to wit



294        PRACTICE AND EVIDENCE IN
nesses. It will be seen that this section requires
witnesses to be examined touching all such matters
respecting the election about to be contesed as shall
be proposed by either of the parties or their akents."
And Sec. 122 provides that the officer shall cause
the testimony of the witnesses, together with the
questions proposed by the parties or their agents to be
reduced to writing," &c. From all which it seems,
clear that witnesses are to be examined before the.
proper officer, and under his direction, and that the
parties or their attorneys, may appear and propound
any proper questions. In the absence of the officer named in the notice, and who issued the subpcena, depositions may be taken before any other
officer who is authorized to issue such subpcena, or
by any officer who may be agreed upon by the parties. And this rule applies as well to testimony tat
ken within the district as to that taken without the
district. [Sec. 120.]
10. The testimony is to be confined to the issues
joined between the parties, and the ordinary rules of
evidence should be applied in determining questions
of competency and relevancy.  [Sec. 121.]  Testimony must be written down, together with the questions propounded, in the presence of the officer, and
in the presence of the parties or their agents, if attending, and must be attested by the witnesses.
[Sec. 122.] Sec. 123 provides for the production of
papers to be used as evidence in contested election
cases. The taking of testimony may, if so stated
in the notice, be adjourned from day to day. [Sec.
124.]
11. The notice to take depositions with the proof




CONTESTED ELECTION CASES.         295
or acknowledgment of service thereof, and a copy
of the subpocena when one has been served, are to
be attached to the depositions when completed, and
a copy of the notice of contest, and the answer
thereto, are to be prefixed to the same, and transmitted with them to the clerk of the House of Representatives.  [Secs. 125 and 126.]
12. It is the duty of the officer who takes testimony to be used in a-contested election case, without unnecssary delay to certify, carefully seal up,
and forward the same to the clerk of the House of
Representatives.  This is to be done "when the taking of the same is completed." [Sec. 127.] If the
testimony of a number of witnesses is taken before
the same officer, he may delay the sending forward
of the testimony until all have been examined'-but
must not delay its transmission any longer than is
necessary for this purpose, and he must be careful
to keep the testimony in his own possession, and securely, until it is mailed, as prescribed by the statute.
Testimony of witnesses taken to be used in a contested election case, must be certified by the officer
taking it, but neither the form nor the substance of
the certificate is prescribed by the statute. Doubtless the form prescribed by the law of the State in
which the testimony is taken, for authenticating depositions, taken under the laws of that State, should
be regarded as sufficient. In cases where no form
is prescribed by the local law, it will be sufficient if
the officer's certificate shows that the witness came
before the officer at the time and place named in the
notice-that he was duly sworn and examined, that
the questions propounded to him, and his answers




296           IMPERFECT BALLOTS.
thereto, were written down in his presence, and in
the presence of the parties or their counsel, [if they
attended,] and that after being thus written out the
testimony of the witnesses was duly attested by the
witness, as by law required. The certificate should
be signed by the officer, and attested by his seal of
office, if he have a seal.
13. Testimony taken under the law and returned
to the clerk of the House of Representatives, must
remain in his custody unopened, until the meeting of
Congress, after which it is under the control of the
House, and is generally ordered to be printed and
referred to the committee of elections.
CHAPTER  VII.
IMPERFECT BALLOTS.
~ 395. It frequently happens that ballots are deposited in the box, which do not perfectly express the
voter's intent. This is the case when the name of
the person voted for is incorrectly spelled, or where
the candidate's initials are not correctly given, or
where the office to be filled is not clearly designated,
as well as in many other similar cases.
In the case of McKenzie vs. Braxton, in the
House of Representatives of the forty-second Congress, this subject received a very careful consideration. That was a case in which ballots were deposited for "E. M. Braxton," for "Elliott M. Braxton,"




IMPERFECT BALLOTS.          297'
for "Elliott Braxton," and for "Braxton," for Congress. The report of' the committee, which was
adopted by the House, presents a correct statement
of the law upon this subject, and the importance of
the questions discussed will justify the following
quotation therefrom:
~ 396. "The proof in this case clearly shows that
the sitting member is known throughout the district
as well by the name of E. M. Braxton, as by that of
Elliott M. Braxton; and that he is familiarly called
Elliott Braxton; also, that there is no other person
in the district, except the sitting member's infant
son, who bears the name of Elliott M. Braxton, E.
M. Braxton, or Elliott Braxton; and that the sitting
member was regularly nominated for Congress by
the democratic or conservative convention of the
district; that his letter of acceptance was signed E.
M. Braxton; that he canvassed the district and was
the only person of the name of Braxton who was a
candidate. These facts are not disputed by contestant; but we are asked to throw out a large number
of votes, unquestionably cast in good faith for the
sitting member, upon the purely technical ground
that his name was printed upon the ballots E. M.
Braxton, or Elliott Braxton, instead of Elliott M.
Braxton. The grounds upon which the contestant
makes this claim seem to be1. That we are not permitted to look beyond the
ballot to ascertain the voter's intent; and
2. That the ballots in question cannot, upon their
face, be held to have been intended for Elliott M.
Braxton.
It may be, and doubtless is, sometimes necessary




298           IMPERFECT BALLOTS.
to sacrifice justice in a particular case, in order to
maintain an inflexible legal rule, but all just men
must regret such necessity and avoid it when possible to do so. Your committee are clearly of the
opinion that no such necessity exists here. So far
from demanding such a sacrifice of right, the law, as,
well as equity, forbids it.
The contestant asks the House to apply the strictrule which has sometimes, though not always, been
held to govern canvassing officers, whose duty is
purely ministerial, who have no discretionary powers, and can neither receive nor consider any evidence aliunde the ballots themselves. It is manifest
that the House, with its large powers and wide discretion, should not be confined within any such narrow limits. The House possesses all the powers of
a court having jurisdiction to try the question, who!
was elected? It is not even limited to the powers,
of a court of law merely, but, under the Constitution, clearly possesses the functions of a court of
equity also. If, therefore, it were conceded that the
canvassers erred in counting for the sitting member
the votes cast for E. M. Braxton and Elliott Braxton, it would not determine the question as to what
the House should do. What, then, is the true rule
for the government of the House in determining
what votes to count for the sitting member? Your,
committee are clearly of the opinion that where the
ballots give the true initials of the candidate's name,,
that is sufficient, and we, therefore, without hesitation, hold that the ballots given for E. M. Braxton
must be counted for the sitting member.
Another objection, urged with much more zeal by




- IMPERFECT BALLOTS.         299
contestant's counsel, is, to the votes cast for Elliott
Braxton, two hundred and thirty-five in number.
These, it is urged, cannot be counted for Elliott M.
Braxton, the sitting member. Even if we were not
permitted to look beyond the ballots themselves, we
could have little doubt as to our duty; but, under
some circumstances, and for certain purposes, evidence outside of the ballots themselves is admissible. It is true that no evidence aliunde can be received to contradict the ballot, nor to give it a meaning when it expresses no meaning of itself, but, if it
be ambiguous or of doubtful import, the circumstances surrounding the election may be given in
evidence to explain it, and to enable the House to
get at the voter's intent. We see no reason why
a ballot, ambiguous on its face, may not be construed
in the light of surrounding circumstances, in the:
same manner and to the same extent as a written
contract. The true rule, which should govern upon
the subject of the admissibility of extrinsic evidence:
to explain such a ballot, is thus laid down in Cooley
on ihe Constitutional Limitations, page 611:
We think evidence of such facts as may be called the circumstances surrounding the election, such
as who were the candidates brought forward by the
nominating conventions; whether other persons of
the same name resided in the district from which
the officer was to be chosen; and if so, whether they
were eligible or had been named for the office; if the:
ballot was printed imperfectly, how it came to be so
printed, and the like, is admissible for the purpose
of showing that an imperfect ballot was meant for a
particular candidate, unless the name is so different




300           IMPERFECT BALLOTS.
that to.thus apply it would be to contradict the ballot itself; or unless the ballot is so defective that it
fails to show any intention whatever, in which case
it is not admissible."
To the same effect are the following decisions:
Attorney General vs. Ely, (4 Wis., 430.) People vs.
Ferguson, (8 Cowen, 102.)  People vs. Cook, (14 Barbour, 259.)  People vs. Pease, (27 AV. Y., 64.)
In People vs. Ferguson, supra, it was held that, on
the trial of a contested election case before a jury,
ballots cast for H. F. Yates should be counted for
Henry. F. Yates, if, under the circumstances, the
jury were of theiopinion that they were intended for
him; and that to arrive at that intention it was competent to prove that he generally signed his name
H. F. Yates; that he had before held the same office
for which these votes were cast, and was then a candidate again;'that the people generally would apply
the abbreviation to him, and that no other person
was known in the county to whom it would apply.
This ruling was followed in People vs. Seaman, (5
Denio, 402,) and in Peopie vs. Cook, 8 N. Y., 67. In Atlorney General vs. Ely, the court went so far as to
hold that ballots cast for "D. M. Carpenter," "M. D.
Carpenter," "M. T. Carpenter," and "Carpenter,"
might be counted for Mathew H. Carpenter, upon
proof, made to the satisfaction of the jury, that they
were intended for him.
In an early case in Michigan (People vs. Tisdale,
1 Doug., 65,) it was held that no extrinsic evidence
was admissible in explanation or support of the ballot, and this ruling has been followed in that State
in several later cases. The Supreme Court of that




IMPERFECT BALLOTS.            301
State, however, in its latest decision on the subject,
(People vs. Cicotte, 16 Mich., 283,) through a majority
of the judges, expresses the opinion that the doctrine laid down in People vs. Tisdale, is erroneous,
and it is adhered to upon the sole ground that it has
been too long the law of that State to be overthrown, except by the -legislature. The chief justice, in a masterly dissenting opinion, advocates the
entire overthrow by the Court of the erroneous and
pernicious doctrine of the earlier cases. We quote
fromn this dissenting opinion, as follows:'All rules of law which are applied to the expression, in constitutional form, of the popular will,
should aim to give effect to the intention of the electors; and any arbitrary rule which is to have any
other effect, without corresponding benefit, is a
wrong, both to the parties who chance to be affected
by it, and to the public at large. The first are deprived of their offices, and the second of their
choice of public servants.
The chief argument in favor of the rule of People vs. Tisdale, is, that ballots cast for parties by their
initials only, are so uncertain that they cannot be applied without resort to extrinsic and doubtful evidence to ascertain the voter's intention, and therefore should be rejected. But nothing can be more
fallacious. It frequently happens that a man is better known by the initials of his baptismal name than
by the name fully expressed; simply because he is
not in the habit of writing his name in full, or of being thus addressed in business transactions.  I think
it highly probable that that is the case with each of
the parties before us.




302           IMPERFECT BALLOTS.
In political conventions, or legislative bodies, no
one deems it important to write the full name of a
candidate for whom he is Voting, and no one ever
thinks of challenging the vote for uncertainty. Under the application of this rule to the present case,
the curious spectacle will be exhibited of votes cast
for E. V. Cicott and G. O. Williams, being rejected
because the courts cannot determine for whom they
were intended, while not a single person in the
county of Wayne has the slightest doubt that they
were cast for Edward V. Cicott and Gurdon 0. Williams, the opposing candidates at this election.
Thus the courts are required to close their eyes to
what everybody else can see distinctly. The fallacy
of the rule consists in its assuming that a certain
form of ballot clearly expresses the voter's intention,
while another form is so uncertain that it is dangerous to attempt to arrive at the meaning by evidence.
But, in fact, no ballot can identify with, positive certainty the persons for whom it is cast; and notice
must be taken of extrinsic circumstances in order to
apply it. It is always possible that other persons
may reside in the election district, having the same
names, with some of the candidates; but neither the
canvassers nor the courts ever assume that there is
any difficulty in these. cases, but they count the votes
for the persons who have been put forward for the
respective offices. And in some cases, where an
element of uncertainty is introduced into the ballot
unnecessarily, as by the addition of an erroneous
designation, the courts resolve the difficulty by rejecting the erroneous addition, and counting the
ballot for the person for whom it was evidently desiZned.'




IMPERFECT BALLOTS.           303
There is, then, no room -for doubt that the rule
laid down by Judge Cooley, and quoted above, is
the true rule, having for its support both authority
*and reason. To reject it, and establish the doctrine,contended for by contestant, would be to defeat, in,every such case as the one before us, the undoubted
will of the majority. And this injustice would not
be compensated by the establishment of a rule
which is in itself either salutary or important. The,cases are numerous where an imperfect ballot, by
the aid of extrinsic evidence, can be made clear and
perfect. No harm can result from admitting such
extrinsic evidence so long as it is only admitted to,cure or explain such imperfections and ambiguities;as could be cured if they occurred in the most solemn written instruments, and to this extent, and no
further, would we carry it. Thus guarded and qualified, the rule is most salutary and most just."
397. The doctrine of this report will be found
fully sustained by the decisions of the House of
Reepresentatives in the case of Chapman vs. Fergu-son, (1 Bartelett, 267,) where votes for "Judge Ferguson" were counted for the sitting member, Fenner Ferguson, and in which also ballots which read
"Bird B. Chapman for Congress," instead of " for
Congress, Bird B. Chapman," were held good, and
*counted for contestant. And see also Gunter vs.
Willshire, (43d Congress,) where votes returned for
"T. M. Gunter," " T. Ross Gunter," " Thomas N.
Gunter," and "Gunter," were, upon proof of the
intention of the voters, allowed to be counted for
Thomas M. Gunter. In this case, however, the
-committee found that the original ballots were correct, and the error was in the returns.




,304           IMPERFECT BALLOTS.
~ 398. In Commonwealth vs. Ely, (4 Wis., 420,
Brzigtley's Election Cases, 258,) it was held that if a
ballot contains the names of two persons for the'
same office, when but one is to be chosen, it is bad
as to both, but this does not vitiate it as to candidates for other offices, upon the same ticket.  It
often happens that an elector, without any evil intent, casts a ballot, through inadvertence or mistake,
which contains the names of two persons for one
and the same office. Tickets are often printed in
this way, with a view to giving the voter a choice,
which can be indicated by striking off one of the
names. It would be a very rigorous and unjust rule
to say such a ballot is bad as to all other names on
it, because bad as to the two names indicated for the
same office.
~'399. It is well settled that where a limited number of persons are to be chosen to fill a given office
-as, for instance, where the law.provides for the
election by the same constituency of two Representatives in the State Legislature,-a ballot containing
the names of a greater number for that office is
void. It was accordingly held in People vs. Loomis,
(8/h Wendell, 396,) that where the number of constables to be chosen was limited to four, ballots containing the names of five persons designated as
voted for that office, cannot be canvassed, but must
be rejected.  "If," says Nelson, J., "one elector can
cast a ballot containing five names, he may, one of
eight, and thus vote (if he chooses to insert the
names,) for both tickets. It would be impossible for
the presiding officers to select the four according to
the intention of the voter, and four only should be
counted."




IMPERFECT BALLOTS.           305
~ 400. In many of the States there are, statutory
provisions prohibiting the marking of ballots, or the
placing upon the exterior thereof any character or
figure. The purpose of these statutes is, of course,
to protect the secrecy of the ballot, and public policy
demands their enforcement. Cases will arise, however, in which it will be found very difficult, if not
impossible, to carry out strictly all provisions of this
character. We have shown in another connection,
that, although the law forbids the numbering of ballots, yet, if under a misapprehension of their duty,
the judges of election number all the ballots to correspond with a number opposite to the name of the
voter on the poll list, and if no one is injured thereby,
the ballots thus marked should not be rejected.
[McKenzie vs. Braxton, 42d Congress.]
~ 401. And it has also been held that where the
statute provided that all ballots should be written or
printed upon white paper without any marks or figures thereon, to distinguish one from another, ballots
upon paper tinged with blue, and which had ruled
lines, were legal ballots within the meaning of the
act.  (People vs. Kilduf, 15 Ill., 492.)  This ruling,
however, went upon the ground that the ruled paper
was not used with any intent to violate the statute,
and it is quite clear that where the statute distinctly
declares that ballots having distinguishing marks
upon them shall not be received, or shall be rejected,
it should be construed as mandatory, and not simply
directory. And so it was held by the Supreme
Court of Pennsylvania, under a statute of this character, that ballots having an eagle printed thereon
were in violation of the law, and should be rejected.
20




306            IMPERFECT BALLOTS.
(Commonwealth vs. Wallper,.3 S. &' R., 29. Luzerne
County Election, 3 Penn., L, 7., 155.  Clinton County
Election, ibid, 160.)
~ 402. Where a statute prohibits the marking of
ballots so that they may be distinguished by others
than the voter, and declares such ballots void, there
is good reason for construing such statute as mandatory. Such marks destroy the secrecy of the ballot, and it is well known that the plan of voting by
ballot, instead of viva voce, was adopted for the very
purpose of securing to every voter absolute secrecy
if he desires it, and protecting him therein, and this
was thought necessary in order to place the poor
and dependent voter in a situation where he may
act according to his own judgment, and without intimidation from the rich or powerful. In Commonwealth vs. Wallper, (supra,) the Supreme Court of
Pennsylvania said:
"The engraving [on the ticket,] might have sev-,eral ill effects. In the first place it might be perceived by the inspectors, even when the ticket was
folded. This knowledge might possibly influence
them in receiving or rejecting the vote. But in the
next place it deprived those persons who did not
vote the German tickets, [which had an eagle on
them,] of that secrecy which the election by ballot
was intended to secure. A man who gave in a
ticket without an eagle, was set down as anti-German,
and exposed to the animosity of that party. Another objection is that these symbols of party increase that heat which it is desirable to assuage."
~ 403. The Supreme Court of California has
very recently had occasion to consider the force and




IMPERFECT BALLOTS.           307
effect of a statute regulating the size and form of
ballots, the kind of paper to be used, the kind of
type to be used in printing them, &c. The Court
held, and we think upon the soundest reason, that
as to those things over which the voter has control,
-the law is mandatory, and that as to such things as
are not under his control, it should be held to be directory'only.  [Kerr vs. Rhoades, Supreme Court of
Cat., October Term, 1873.]  The conclusion of the
Court was that the purpose and object of the statute
was to secure the freedom and purity of elections,
and to place the elector above and beyond the reach
of improper influences or restraint in casting his
ballot, and that it should have such a reasonable construction as would tend to secure these important
results. And so construing the statute the Court
conclude that a ballot cast by an elector in good
faith, should not be rejected for failure to comply
with the law in matters over which the elector had
no control; such as the exact size of the ticket, the
precise kind of paper, or the particular character of
type or heading used. But if the elector wilfully
neglects to comply with requirements over which
he has control, such as seeing that the ballot, when
delivered to the election officers, is not so marked
that it may be identified, the ballot should be rejected.
~ 404. A statute of Indiana provided that all ballots should " be printed on plain white paper, without any distinguishing marks or other embellishment thereon, except the names of candidates and
the offices to be voted for," and that "inspectors of
election shall refuse all ballots offered of any other




308            IMPERFECT BALLOTS.
description."  Under this statute it has been repeatedly held by the Supreme Court of that State that
a ballot may be headed with the words "Republican
ticket," or " Democratic ticket," printed on the same
side with the names of the candidates. These are
not "distinguishing marks or embellishments," within
the meaning of the statute. The law was framed
to forbid any marks or characters on the exterior of
the ballot to distinguish it, and thus destroy its secrecy. [Druliner vs. State, 29 Ind., 308. Napier
vs. Mlayhew, 35 Ind., 275.]  And this ruling was followed by the lower House of the forty-third Congress, in the case of Nlef vs. Shanks.
~ 405. There are also in some of the States laws
requiring that the voter shall endorse on the outside
of his ballot the name of the office voted for.
These statutes are generally held to be directory
only. Thus in People vs. McManus, 34 Barb., 620,
it was held that a ballot endorsed "for trustees of
public schools," instead of common schools, was sufficient. The intention of the voter must control, and
therefore, if that intention is clearly manifested, it
is enough.  (People vs. Matteson, 17 Ill., 167.) And
it was held in Wisconsin, that where the description
or designation of the office on a ballot is applicable
to two or more offices, parol evidence is admissible
to show which of them  was intended by the voter.
[State vs. Goldthwait, 16 Wis., 146, and see State vs.
Elwood, 12 Wis., 552.]  If a ballot contains the
names of more persons than are to be voted for,
for a specified office, it is void as to that office, and
must be rejected, [6 Philadelphia, 437, 2 Pars., 534.
State vs. Tierney, 23 Wis., 430,] but is good as to the
other offices named on it.




IMPERFECT BALLOTS.           309
~ 406. But where a ballot contains the name of
the person voted for, and the office for which he is
designated, several times repeated, it is not for that
reason void, but is to be counted as one ballot.
(People vs. Holden, 28 Cal., 124.  Ashfeld's Case,
Cush. Election Cases, 583.)  There seems to be no
reason why a ballot containing a less number of
names for a given office, than the number to be
chosen, should not be counted for those who are
designated. If three Representatives in the legislature are to be chosen by the voters of a given county or district, an elector may vote for one, or for
two only, if he choose to do so.
~ 407. While it is true that evidence aliunde may
be received to explain an imperfect or ambiguous
ballot, it does not by any means follow that such evidence may be received to give to a ballot a meaning or effect hostile to what it expresses on its face.
The intention of the voter cannot be proven to contradict the ballot, or when it is opposed to the paper
ballot which he has deposited in the ballot box.
Thus where a ballot is cast which has upon it the
names of two persons for the same office, proof offered to show that the voter intended to vote for the
one or the other of them, and not for both, must be
rejected. (The People vs. Seaman, 8 Cowan, 409.)
Such a ballot may be void, but it is not ambiguous,
and therefore cannot be helped by parol proof.
~ 408. It very often happens that a printed ticket
is changed by the voter, by erasing some part of it,
or by writing on the face of it, or by both, to make
it conform to his wishes. A ballot is to be construed
in the same way as any other written or printed




310            IMPERFECT BALLOTS.
document, and the construction must be such as to
give effect to the voter's intent if that can be ascertained from the face of the ballot, or in some cases,
as we have seen from the ballot as explained by evidence aliunde.  If, therefore, a voter has written
upon his ballot the name of a particular person in
connection with the title of an office, and omits to
strike out the name of another person printed upon
it in connection with the same office, the writing
must prevail, and the vote must be counted for the
person whose name is written. This is upon the
ground that the writing is the highest evidence of
the voter's intention.
~ 409. In such a case the voter's intention can be
clearly ascertained from the face of the ballot; there
is no ambiguity, and therefore, evidence aliunde is
not admissible to explain it, and the Court must, in
such a case, find, as matter of law, that the writing
on the face of the ballot prevails over the printing.
(The People vs. Saxton, 22 N. Y., 8 Smith, 309.)
~ 410. In New York, since the decision in People
vs. Sexton, and People vs. Cook, supra, it has been
considered as settled that upon the trial of a case
where the question as to who was elected to a particular office, and what was the intention of certain
ballots, is investigated before a jury, the Court and
jury are not confined to the narrow limits which control boards of canvassers who have no power to take
evidence aliunde the ballot itself. Such boards cannot, but courts and juries can, hear and consider evidence for-the purpose of elucidating any apparent
ambiguity one the face of a ballot or any apparent incongruity between it and the surrounding circum



IMPERFECT BALLOTS.           311
stances. And it has accordingly been held that the
placing of a "paster" containing one name over
another name, on a ticket, indicates an intention to
substitute one name for another. If it be placed
over another name which is under the title of an
office, it indicates an intention to substitute for that
office the name upon the paster. If it be done in
such a manner as to afford any ground for doubt,
whether the voter intended to designate two persons
for the same office, that doubt may be safely left to
be solved by a jury, in view of all the facts, the appearance of the ballot and the surrounding circumstances. And in cases where there is doubt as to
the intention of the voter, because of some apparent ambiguity on the face of the ballot, it is error
for the Court to reject proper evidence offered to
explain the ambiguity, and to instruct the jury as
matter of law, that such ballot cannot be counted.
(The People vs Love, 63 Barbour, 535.)
~ 411. Where a pen or pencil mark is drawn
over a name which has been printed on a ballot, it
will be presumed that an erasure of the name was
intended, although it be still legible, unless the contrary is shown. It is not necessary to obliterate the
name entirely. And where the inspectors have rejected such a ballot, on the ground that the name
was erased, and where the ballot itself is not in evidence, the correctness of the decision of the inspectors will be presumed.  (Adams vs. Wilson, Ci. &'
H., 3T3.)
~ 412. Where the constitution declares that all
ballots shall be "fairly written," a printed ballot is
good.  (Temple vs. Mead, 4 tVI., 541.  Henshaw




,312           IMPERFECT BALLOTS.
vs. Foster, 9 Pick., 312.)  The term "written" is held
to include what is printed, following the definition of
that term, as given by the best lexicographers, viz:
"to express by means of letters."  No doubt to the
common understanding the term "written" conveys
the idea of forming letters into words with a pen or
pencil; but to give it this meaning in this connection
would be to sacrifice the spirit for the sake of the
letter. "The letter killeth, but the spirit maketh
alive," is the forcible expression of scripture.
~ 413. The constitution of Indiana provides that
"all elections by the people shall be by ballot."  A
statute of that State, passed in 1869, provides that
"it shall be the duty of the inspector of any election, &c., on receiving the ballot of any voter, to
have the same numbered with figures on the outside
or back thereof, to correspond with the number
placed opposite the name of such voter on the poll
list, kept by the clerk of said election." The question of the validity of this statute came before the
Supreme Court of Indiana, in the case of Williams
vs. Stein, (38 Ind., 89.) The case presented squarely the question whether under a constitution guaranteeing to every voter the right to vote at all elections by the people, by ballot, it is competent for the
legislature to provide for numbering the ballots in
such manner as to destroy their secrecy. The court
held the statute to be unconstitutional and void.
Upon an elaborate review of the authorities, the
conclusion is reached, upon what seems to be good
ground, that in this country the ballot implies absolute and inviolable secrecy, and that this doctrine is
founded ill the highest considerations of public poli



IMPERFECT BALLOTS.            313
cy. That the term ballot implies secrecy, and that
this mode of voting was adopted mainly to enable
each voter to keep secret his vote, is clear.  (Cushing on Leg. Asssmblies, Sec. 103. May's Conslitulional History of England, Vol. 1, p 353. People vs.
Pease, 27 N. Y., 45. Cooley's Cons/. Lim., 604. Temple vs. Mead, 4 Vt., 535.)
~ 414. A statute of Indiana provided, that in an
election to determine the question whether a county
subscription should be made to, aid in constructing a
railroad, the form of an affirmative ballot should be
"for the railroad appropriation." At an election
held under this statute, ballots were cast which had
printed or written upon them only the words "for
the railroad." This was held to be an irregularity
which would not affect the election.  (R. R. Co. vs.
Bearss, el al, 39 Ind., 39.)
~ 415. Where a statute authorizes an election to
be held by a county, city, or township, for the purpose of determining a given question-as for example, whether such municipality shall subscribe to the
stock of a railroad company-and where such statute points out no mode for conducting such election,
it has been held that it should be conducted in the
manner prescribed by law for other elections by the
same body. For example, if an election in a township is held for such a purpose under a statute silent
as to the manner of proceeding, it should be held in
the manner township elections are required to be
held, in the election of their town officers, and not
under the general election laws of the State. (People vs. Dutcher, 56 Ill., 144.)  The doctrine of this
case is that where the legislature authorizes a town



314       VIOLENCE AND INTIMIDATION.
ship or other corporate body to hold an election, and
has prescribed no mode, it is to be presumed that it
was designed to authorize it to be conducted in
the manner usually adopted and authorized by the
laws governing the action of the body.
CHAPTER   VIII.
VIOLENCE AND INTIMIDATION.
~ 416. If it clearly appear that the fairness, purity
or freedom of an election has been materially interfered with by acts of violence, intimidation, or armed
interference, such election should be set aside.
Slight disturbances frequently occur, and are often
sufficient to alarm a few of the more timid, without
materially affecting the result or the freedom of the
election. The true rule is this. The violence or
intimidation should be shown to have been sufficient
either to change the result, or that by reason of it
the true result cannot be ascertained with certainty
from the returns. To vacate an election'on this
ground, if the election were not in fact arrested, it
must clearly appear that there was such a display of
force as ought to have intimidated men of ordinary
firmness.  (Harrison vs. Davis, 1 Bartlett, 341.
Bruce vs. Loan, Ibid, 482.)
~ 417. In Harrison vs. Davis, the committee say
in their report:  "It (the specification,) nowhere
makes the formal allegation that the law requires,




VIOLENCE AND INTIMIDATION.       315
either that the election was arrested and broken up
in every ward, or that so many individuals were excluded by violence and intimidation as would, if allowed to vote, have given the contestant the majority. Either of these grounds, if stated and proved,
would have been in law decisive of the case, but
neither is stated in the specification, and neither is
proved by'the evidence."
The case of Bruce vs. Loan arose in Missouri in
the early part of the war of the rebellion, (1862,)
and the allegation was that the election in many places was controlled, and large numbers of voters
overawed by the " enrolled militia," a State military
organization which had been raised and armed for
military service. There was much. dispute about
the facts, but both the majority and minority of the
committee appear to have conceded the correctness
of the general rule of law laid down in Harrison vs.
Davis.
~ 418. There can, however, be no doubt but that
the law looks with great disfavor upon anything like
an interference by the military with the freedom of
an election. An armed force in the neighborhood
of the polls is almost of necessity a menace to the
voters, and an interference with their freedom and
independence, and if such armed force be in the
hands of, or under the control of the partisan friends
of any particular candidate, or set of candidates,
the probability of improper influence becomes still
stronger.  And although the fact that an armed
force was stationed at or near the polls will not, of
itself, vitiate an election in the absence of proof that
it did in fact deter from voting a portion of thedelec



!316      VIOLENCE AND INTIMIDATION.
tors sufficiently large to change or render doubtful
the result, yet, in such a case, it would not be necessary to show that the electors who declined to vote
would have been in actual danger if they had attempted to do so. If it be made to appear that
there was an armed force at the polls, and that a
number of voters sufficiently numerous to affect the
result, or render it doubtful, considered the presence
of such force so menacing to them as to render it
unsafe for them to vote, and that they had reasonable cause so to think, and if for this reason they declined to go to the polls, the election ought to be set.aside.
~ 419. In Giddings vs. Clark, a contested election
case tried by the U. S. House of Representatives of
the forty-second Congress, the following facts were
shown in relation to the election in the county of
Limestone.
"The colored voters generally failed to vote, so
that only twenty-eight votes were cast for Clark, to
one thousand, one hundred and fifty-three for Giddings. That a. state of excitement and fear existed
in this county about the time of the election, is clear.
A collision occurred between some colored policemen and certain white men, which resulted in the
death of one of the latter, and the wounding offone
of the former. This produced great excitement, and
was followed by a general uprising and arming of
both whites and blacks. On the day of election, the
town where the election was held was occupied by,an armed force under command of one Captain
Richardson. Pickets were stationed on all the roads
leading into town, and persons coming in to vote




VIOLENCE AND INTIMIDATION.       317
were obliged to obtain a pass from the military authorities. Although the witnesses say that all voters
were permitted to  come and go in peace, and that
the freedmen were urged to vote, yet it is clear that
they abstained from doing so for reasons which most
men would consider good and sufficient."
The committee were of the opinion that this was
not a free axnd fair election, and so reported to the:
House. The correctness of this decision cannot be
doubted. Where the polls are surrounded by a military force, and voters required to pass pickets, and
procure permission of military authorities, in order
to approach them, there can be no free election. It
is no answer to this, to say that the military are stationed around the polls to preserve the peace, and
secure freedom to all voters.
~ 420. A case may perhaps arise where it will not
be improper to station troops in the vicinity of the
election, at a place where they can be called upon in
case of emergency to suppress riot or prevent
bloodshed, but in all such cases the troops should be
removed from the actual presence of the voters,
and should not be permitted in any manner to interfere with persons going to or returning from the
polls. We have inherited from our British ancestors a strong aversion to interference by the military
power with the conduct of elections, and this feeling
has been heightened by the long enjoyment in this
country of the larger liberty of American citizenship. As early as 1741 an attempt was made to interfere with an election held for the city of Westminster, by stationing a body of armed soldiers near
the poll. On this being shown to the House of




318        VIOLENCE AND INTIMIDATION.
Commons, it was by that body resolved "that the
presence of a regular body of armed soldiers at an
election of members to serve in parliament, is a high
infringement of the liberties of the subject, a manifest violation of the freedom of elections, and an
open defiance of the laws and constitution of this
kingdom."  In some of the States there are statutes
prohibiting the employment of troops or their presence at any place of election during the time of
such election. Such a statute was enacted in Pennsylvania as early as 1803. (4Smilh's Laws, 101.) (g.)
~ 421. In the early case of Trzigg vs. Preston, in
the House of Representatives of the third Congress
(1793,) the question arose whether the presence of
a part of the military force of the United States at
the polls, and certain disorderly and improper conduct of theirs was sufficient to vitiate the election.
The facts were as follows: A brother of the sitting
member was the commander of a company of federal
troops, which was quartered near the voting place.
On the day of the election the said troops were
marched, in a body, twice or three times around the
court house, where the election was held, and paraded in front of and close to the door thereof. The
troops were allowed to vote and voted generally in
favor of the sitting member, but their votes were
thrown out by the returning officers. Some of them
threatened to beat any person who should vote in
favor of the contestant.  One of the soldiers struck
and knocked down a magistrate who was attending
(g.) And the bringing of armed troops to a place of election, except
to repel the armed enemies of the United States, or to keep the peace,
is prohibited by act of Congress. (Revised statutes U. S., Sec. 2oo0.)




VIOLENCE AND INTIMIDATION.       319;at said election: Three soldiers stood at the door',of the court house, and refused to admit a voter because he declared he would -vote for contestant.
There were altercations between the soldiers and
the people, which terminated after the poll was closed
in a violent affray. Upon these facts the committee
found and reported that the conduct of the soldiers
as well as that of their commander, "was inconsistent with that freedom and fairness which ought to
prevail at elections; and that, although it does not
appear, from any other than hearsay testimony, that
any voter was actually prevented from voting, yet
there is every reasonable ground to believe that
some were, and that the election was unduly and unfairly biassed by the turbulent and menacing conduct
of the military." (Cl. & H., 78.) The report of
the committee was lost in the House. It may be
conceded that the facts in that particular case did not
constitute such violence and intimidation as should
have vitiated the poll, and still the rule we have stated remains well settled. If this case did not fall within the rule it was because it did not appear that the
presence and conduct of the soldiery actually deterred.from voting, a number of legal voters, sufficiently numerous to change or render uncertain the
result.
~ 422. We conclude1. That an armed force should never be stationed
immediately at the polls.
2. That in cases where riot and bloodshed are apprehended troops may be stationed in the neighborhood, if so ordered by competent authority, with a
view to keep the peace, and suppress such violence




320       VIOLENCE AND INTIMIDATION.
gas is beyond the power of the local peace officers or
courts to control.
3. That in all cases where it is alleged that armed
soldiers have interfered with the freedom of an election, either by their presence or their conduct, or both,
all the facts are to be considered and the question is,
whether by reason of the action of such armed soldiers, legal voters have, for sufficient cause, felt themselves obliged to abstain from voting in numbers so
large that if they had voted it would have changed
the result or rendered it uncertain.
~ 423. In the case of Biddle &.Richard vs. Wing,
(CG. & H. 506-7,) the committee of elections of the
House of Representatives expressed the opinion
that it was not the duty of the House "to inquire into the causes which may have prevented any candidate from getting a sufficient number of votes to
entitle him to the seat." They considered that the
duty of the House was to inquire, and if possible,
ascertain "who had the greatest number of legal
votes actually given at the election." And accordingly the committee held that they could not inquire
into the truth of the allegation of one of the contestants, who did not claim to have received the
greatest number of votes actually cast, but alleged
that "he would have received the greatest number
of votes had not his friends, at the election holden
in the city of Detroit, been intimidatedfrom yvoing,"
&c. This report was never acted upon by the
House, and therefore is without its sanction, and
depends for its force as a precedent solely upon the
committee's recommendation.
It can hardly be said to state the doctrine upon




VIOLENCE AND INTIMIDATION.        321
the subject with completeness or accuracy. Intimidation of voters may always be shown, and allegations and proof upon this subject should always be
heard. It must, however, in the nature of things,
be a rare case in which the votes of persons prevented from voting by violence or intimidation can be
counted for one or the other candidate, as if actually
cast. In order that a vote not cast, shall be counted
as if cast, it must appear that a legal voter offered
to vote a particular ballot, and that he was prevented from doing so by fraud, violence, or an erroneous
ruling of the election officers. Just what is to be
understood by offering to vote is not perhaps perfectly well settled. If a voter approaches or attempts to approach the polls, for the purpose of depositing his ballot, and is driven away, or by violence, intimidation or threats, prevented from the
actual presentation of his ballot to the proper officer, and if he used proper diligence in endeavoring
to reach the polls and deposit his ballot, and was
not intimidated without sufficient reason, the better
opinion seems to be that his vote may be counted.
But of course voters who do not present themselves
at the polls, and offer their ballots, or who do not
attempt to go to the polls at all, or attempting, fail,
without reasonable cause, cannot in any case ask
that their votes be counted.  (Newcum vs. KirlZey,
13 B. Monroe, 515.)
~ 424. But there is another ground upon which it
is, in such a case, proper to offer proof of intimidation and violence, and that is to the end that the
House may determine whether there has been a free
and fair election. For, if, by this means legal voters
21




322       VIOLENCE AND INTIMIDATION.
have been deprived of their right to vote in numbers sufficient to change the result, the election may
be set aside. In the report just referred to, the committee concede that there may be a case in which
"fraud and corruption should appear sufficient to
destroy all confidence in the purity and fairness of
the wh6le proceeding." And it is very clear, that,
if in the course of an investigation it Should become
apparent, that there was intimidation and violence
sufficient to destroy the election, it would be the duty,of the House to declare it void, even though no
party to the contest has formally alleged that it was
so. If the allegation be as in the case of Biddle and
Richard vs. Wing, supra, that enough of the friends.of a contestant.were deterred from voting by violence;and imtimidation to have elected him, if they had
been allowed to vote, as was their right, yet, if the
(evidence shows that the election should be set aside
the House will not stop short of its duty for want of:an allegation that the election was fraudulent and
void. A court of justice might be so hampered by
-the rules of pleading as to be unable to grant any
relief beyond that prayed for, but the House of Representatives is not.
~ 425. In saying that upon sufficient proof of violence and intimidation an election may be set aside,
we mean, of course, that the particular poll or polls,
where such violence occurs, shall be thrown out of
the count. Whether in a case where a number of
counties or precincts vote for the same officer, and
a portion of them are rejected for this cause, the entire election is to be held void,'is often a question of
difficulty. It is very clear that if the violence has




VIOLENCE AND INTIMIDATION.        323
prevented a large proportion of the electors in the
whole district from- participating, the election is void,
and it is also clear, that if only a small part of the
district was disturbed by it so that the great body of
the electors have had a fair opportunity to vote, then
the election must stand, unless it can.be shown that
but for the violence the result would have been
different. The difficulty arises in cases where the
infected part of the district is neither so large as to
make it clear that the election is void, nor so small
as to make it clear that the election, is not void.
Each case of this character must be determined by
the circumstances surrounding it, and with a view to
promote the ends of justice. Much will, of course,
depend upon the relative vote of the several candidates outside of the infected districts, because if any
one has a very large majority in the peaceable localities, and the vote of the infected precincts is
not large, there will be less probability that the result has been achieved because of the violence;
while on the other hand, if the vote of the peaceable precincts is very close, the rejection of a small
district for violence might be regarded as fatal to
the election. In a word, if it is apparent that to accept the result as shown by the peaceable precincts,
would be to allow the minority to choose the officer,
then the election is to be held void.
~ 426. It was laid down by the committee of
elections of the forty-first Congress, in several cases,
that violence and intimidation in some of the precincts does not invalidate the election in those which
are peaceable. (Hunt vs. Sheldon, 2 Bartlett, 530083. Syfiher vs. St. Marlin, do, 699.  Wallace vs.
Simpson, do, 731. Darrall vs. Bailey, do, 754.)




324       VIOLENCE AND INTIMIDATION.
But thus broadly stated this is not a sound rule.,
This will be apparent upon a moment's reflection.
Suppose there are ten counties in a congressional district, and there is in nine of them such violence at
the polls, as to destroy the fairness and freedom of
the election; can it be claimed that the one peaceable county should choose a representative for the
ten? Clearly not. The. true principle is, that if the
great body of the electors are prevented, without:
their fault, from participating in an election, it is not
a valid election. Where the majority voluntarily
remain away from the polls, the minority, however.
small, who do vote, may elect, but not so where the
majority are kept from the polls by violence and intimidation.
~ 427. The rule laid down, in the cases just cited,,
cannot be said to have received the unqualified sanction of the House of Representatives, though in
some of the cases the recommendations of the committee were adopted. The House soon found that
under the operation of the rule, persons were likely
to be seated in that body, who were not the choice
of the majority. In the case of Sypher, supra, the
report of the committee, which was based upon this
rule entirely, was overruled, and the election declared to be null and void, for the reason, as we
learn from the debate, that the parishes rejected for
violence, contained a majority of the voters of the
district. The case of Hunt vs. Sheldon, supra, is regarded as the leading case favoring the rule, but it
was claimed by some, at least, of the members who
voted for that report, that notwithstanding the violence, there was a peaceable election in the larger




VIOLENCE AND INTIMIDATION.        325,and more populous portions of the district.  In the
course of the debate in Sypher's case, Mr. Garfield,
of Ohio, explained his vote in Sheldon's case, as
follows:
" Mr. Garfield, of Ohio. When the case of hTunt'vs. Sheldon, was before the House, I stated the
ground on which I acted. It was that in nine huntdred and ninety-nine parts, out of one thousand of
the territory embraced by the district, there was no
disturbance, and among the majority of the population, as exhibited by the census report, there was no
disturbance.  I considered, therefore, that a very
large proportion of the territory, and a majority of
the population of the district, had a peaceable election, and that, therefore, we should not throw the,election out."
And it is manifest, not only from the debate, but
-from the action of the House, in voting down the
re"port in Sypher's case, that the decision in Sheldon's,case was not intended as an endorsement of the,doctrine that the peaceable precincts may elect,,without regard to their number or population.
~ 428. It was claimed by those who sustained the
rule, as it was laid down by the committee in Sheldo'n's case, that it was necessary for the protection of
the freedmen of the South, who were, as it was
claimed, "peculiarly exposed to violence and intimidation by the former master class, prone by habit
and inclination to domineer over their former slaves."
It may be hoped that the very anomalous condition:of things which existed in that region at the time of
the elections, which gave rise to the reports under,consideration, was transient, and has already or will




326       VIOLENCE AND INTIMIDATION.
soon pass away forever. At all events, it is by no
means safe to establish a rule applicable to all cases
and for all time, and capable of incalculable mischief
in its general and universal application, in order to!
provide for a few exceptional and extraordinary cases. Nor can it be conceded that this rule was necessary, even for the protection of the freedmen. The
best protection against violence is the enactment and
enforcement of laws for its punishment.  Beyond
this, it is enough that the community in which it occurs to such an extent as to prevent the holding of
free and fair elections, should go unrepresented, and
if need be, suffer. the rigors of military rule until
they decide to obey the laws and appreciate the
blessings of freedom for themselves and for all others.
~ 429. It would seem, therefore, that the following
rules, if administered in the light of the general
principles, which have now been stated, will afford a
safe guide:'1. If the violence and intimidation has been so
extensive and general as to render it certain that
there has been no fair and free expression by the
great body of the electors, then the election must
be set aside, notwithstanding the fact that in some
of the precincts or counties there was a peaceable
and fair election.
2. Where there has been an election, embracing a
number of counties or precincts, in which there has
been violence and intimidation, enough to exclude
from the count one or more precincts, or voting
places, but not enough to destroy the freedom and
fairness, of the election, as a whole, such violence




VIOLENCE AND INTIMIDATION.       327
will not invalidate the election, nor affect the result
of it, unless it be shown affirmatively, that but for
it, the result would have been different.
3. The question in each case must be, has the
great body of the electors had an opportunity to
express their choice, through the medium of the ballot, and according to law, and this question must be
decided in the light of all the facts and circumstances shown in the evidence. If some of the precincts
or voting places are necessarily thrown out of the
count, because of unlawful disturbances or violence,
it will be necessary to determine from the evidence,
whether their exclusion necessarily destroys the
fairness and freedom of the election, as a whole.
~ 430. It was held in State vs. Mason, (14 La. An.,
505,) that a petition which demanded that an election be set aside, because of violence and intimidation at the polls, must allege that a sufficient number of voters were prevented from voting, to have
varied the result of the election. The Court observes:  "It is evident there would be no reason to
contest an election, if the result could not be changed,
and such would be the event, unless a number of
voters had been prevented from voting, sufficient to
have varied the result. And to the same purport is
Auguslin vs. Eggleston, (12 La. An., 367.)
~ 431. Where it is alleged that a large number
of persons have been deterred from voting, by violence and intimidation, the testimony of those persons, or some of them, should be produced. The
opinions and impressions of others is not sufficient.
Upon this point the report in Norris vs. ]Handley,
42d Congress, has this language:




328       VIOLENCE AND INTIMIDATION.
"It would seem that if over two thousand electors
were deterred from  voting, by violence, threats, or
intimidation, some of these electors could be found
to come forward and swear to the fact. Your committee think that it would establish a most dangerous precedent, to allow a fact of this character, so
easily established by the direct and positive testimony of so many witnesses, to be proven solely by
hearsay and general reputation. We have not forgotten nor overlooked the fact that the same state
of things which would make men afraid to vote for
a particular party might also make it difficult to secure testimony in behalf of that party.  But in many parts of the district where testimony was taken
there is no pretense that witnesses were intimidated;
and, beside, if the contestant had shown, to the satisfaction of the House, that witnesses needed the
protection of the Federal Government in order to
be safe in testifying fully and freely, that protection
would have been afforded at any cost."
~ 432. The freedom of elections is of the utmost
importance. The law justly regards all attempts to
interfere with the electors in the peaceable and quiet
exercise of their rights, or to improperly influence
them against their judgment or desire, as a crime,
and in addition to the ordinary punishment of the
crime of bribery of an elector, it is provided by the
constitution of many of the States that whoever
shall be convicted of that crime shall forfeit the
right to any office of profit or trust under the State.
(See the Constitutions of Maryland, Missouri, Newz
Jersey, West Virginia, Oregon, Cazifornia, Kansas,
Texas, Arkansas, Rhode Island, Alabama, Florida,




VIOLENCE AND INTIMIDATION.        329
New York, Massachusetts, Vermont, Nevada, Tennessee, Connecticut, Louisiana, Mississizppi, Ohio and
Wisconsin.)
~ 433. In some of the States it is provided by
statute that the militia shall not be called out for exercise or drill on the day of election, and it has been
held in New York that a defendant, sued under an
act of this character, cannot plead in justification
that he acted under the orders of his superior officer.
Nor is it any defense that defendant was ignorant of
the existence of the law.  (Hyde vs. Malone, 11
Yohnson 520.)
~ 434. It is clear that fraud, violence or intimidation committed against the purity or freedom of an
election for representative or delegate in Congress
may be prohibited and punished by act of Congress.
And it is competent for Congress to provide by law
for the punishment of persons who at such an election violate a State law, regulating either such election, or the registration of voters preceding it.
Congress may, under the constitution, declare fraudulent registration, for the purpose of voting for a
representative or delegate in Congress, or fraudulent voting for such delegate or representative, to
be a crime against the United States. (The U. S.
vs. Quinn, Brightley's Election Cases, 592. Ante,
~ 309.)
~ 435. The act of Congress of 31st May, 1870,
Sec. 19, provides, among other things, for the punishment of any person or persons who " by violence or
any unlawful means hinders, delays, prevents or obstructs any citizen from doing any act required to be
done to qualify him  to vote, or from voting at any




330       FRAUD AND ILLEGAL VOTING.
election," &c. It has been held that an indictment
under this act can be sustained by proof; that the
defendant and others attacked a number of voters
waiting in line for their turn to cast their ballots, and
expelled them from the room, though they afterwards returned and actually voted. The offense
was complete by the expulsion of the voters from
the polls. [United Slates vs. Louders, 2 Abbot, U. S.
Rep., 456.]  It is not necessary that the attempt to
deprive a voter of his rights, by violent or unlawful
means, shall have been successful; the offence is
complete if the attempt be made with an unlawful
or criminal intent.
CHAPTER IX.
FRAUD AND ILLEGAL VOTING.
~ 436. Although the return of the vote of a given
precinct, made; in due form, and signed by the proper
officers, is the best evidence as to the state of the
vote, yet it may be impeached, on the ground of
fraud or misconduct on the part of the officers of
the election themselves, or on the part of others.
In election cases, however, before a return can be
set aside, there must be proof that the proceedings
in the conduct of the election, or in the return of the
vote, were so tainted with fraud, that the truth cannot be deduced from the returns. The rule is thus
stated in Howard vs. Cooper, (1 Bartlett, p. 275.)




FRAUD AND ILLEGAL VOTING..331
"When the result in any precinct has been shown to
be so tainted with fraud that the truth cannot be deducible therefrom, then it should never be permitted
to form a part of the canvass. The precedents, as
well as the evident requirements of truth, not only
sanction, but call for, the rejection of the entire poll,
when stamped with the characteristics here shown."
~ 437. The rule just stated needs the following
explanation, in order that it may be correctly understood. The committee, no doubt, meant to say that
if the result, as shown by the returns, is tainted with
fraud, the returns are to be rejected as false, and
worthless.  But, as we have elsewhere seen, the
question whether the entire vote of the precinct
shall be rejected for fraud, depends upon another
question, viz: Whether from any evidence it is
possible to ascertain the true result. The returns
may be rejected as fraudulent, and yet the true vote
may, in some cases, be ascertained, and where it can
be ascertained, independently of the rejected returns, the law requires that it be respected and enforced. Where the true vote cannot be ascertained
either from the returns, or from  evidence aliunde,
the vote of the precinct is to be rejected.
~ 438. The return must stand until such facts are
proven as to clearly show that it is not true. When
shown to be fraudulent or false, it must fall to the
ground. This ruling is well settled by numerous
authorities, including the following.  (Blair vs. Barre/t, 1 Bartlett, 308. Knox vs. Blair, 1 Bartlett, 520.
Howard vs. Cooper, supra.  Washburn vs. Voorhies,
2 Bartlett, 54.)  The following remarks concerning
the dangers which may attend the application of




332        FRAUD AND ILLEGAL VOTING.
this rule, are here quoted with emphatic approval,
from the report of the committee of elections, in the
House of Representatives, in Washburn vs. Voorhies,
(supra.)
"In adopting this rule the committee do not lose
sight, however, of the danger which may attend its
application. Wholesome and salutary, not less than
necessary, in its proper use, it is extremely liable to
abuse. Heated partisanship, and blind prejudice,
as well as indifferent investigation, may, under its
cover, work great injustice. It is not to be adopted
if it can be avoided. No investigation should be
spared that would reach the truth without a resort
to it. But it is not to be forgotten or omitted, if the
case calls for its application. If the fraud be clearly
shown to exist to such an extent as to satisfy the
mind that the return does not show the truth, and
no evidence. is furnished by either party to a contest, and no investigation of the committee enable
them to deduce the truth therefrom, then no alternative is left but to reject such a return. To use it
under such a state of facts, is to use as true what is
shown to be false."
~ 439. Where the return showed that Geo.W. Julian, had received at a given precinct, only one hundred and forty-three votes, parol proof was admitted
to prove that the return was false, and that in fact he
had received a larger number of votes than said return allowed him. (Reid vs. 7ulian, 2 Bartlett, 822.)
In this case one hundred and seventy legal voters of
the precinct were called, and were permitted to testify that they had each voted for Mr. Julian. It was
objected that the proof was not competent because




FRAUD AND ILLEGAL VOTING.        333
the ballots were the best evidence; but this objection was very properly overruled. The allegation
was, that the ballots had been tampered with; that a
fraud had been committed, by which a number of ballots legally cast had not been fairly deposited in the
box and honestly counted out and returned. Of
course in such a case the ballot might sustain the
fraud. The ballots are the best evidence, when it is
shown or conceded that they are the identical ballots
and all the ballots deposited by legal voters; but
when the question is whether fraudulent ballots have
been deposited, or honest ballots abstracted, the ballots in the box are by no means the best evidence.
Fraud of this character may, therefore, always be
proven by parol. (And see also Washburn vs. Voorhies, 2 Bart/elt, 54.)
~ 440. But of course the parol evidence offered to
set aside a return upon the ground of fraud, must be
such as to establish the fraud or mistake in the reception and deposit, or in the count or return of the votes.
The official acts of sworn officers are presumed to
be honest and correct until the contrary is made to
appear. It has accordingly been held that a return
cannot be set aside upon proof that a recount made
by unauthorized persons sometime after the official
count has been made, showed a different result from
the official count. This was upon the ground that
the count made by sworn officers immediately upon
the closing of the polls, was better evidence of the
true result than a count made by interested parties
not sworn, at a subsequent period, and after the result of the official count had been made known, such
evidence comes far short of establishing either fraud




334        FRAUD AND ILLEGAL VOTING.
or mistake in the official count.  (Gooding vs. Wilson, 42d Congress.)
~ 441. Fraud, in the conduct of an election, may
be committed by one or more of the officers thereof,
or by other persons.  If committed by persons not
officers, it may be either with or without the knowledge or connivance of such officers. There is a
difference between a fraud committed by officers or
with their knowledge and connivance, and a fraud
-committed by other persons, in this: the former is
ordinarily fatal to the return, while the latter is not
fatal, unless it appear that it has changed or rendered doubtful the result. If an officer of the election
is detected in a wilful and deliberate fraud upon the
ballot box, the better opinion is that this will destroy
the integrity of his official acts, even though the
fraud discovered is not, of itself, sufficient to affect,the result.  (Ante, ~ 184.  7zdkins vs. Hill, 50 N,
H., 104.) The reason of this rule is, that an officer
who betrays his trust in one instance, is shown to be
capable of the infamy of defrauding the electors,
and his certificate is, therefore, good for nothing. If,
for example, an election officer, having charge of a
ballot box, prior to or during the canvass, is caught
in the act of abstracting certain ballots, and substituting others, although the number shown to have
been abstracted, be not sufficient to affect the result,
yet no confidence can be placed in the contents of a
ballot box, which has been in his custody. We repeat, therefore, the opinion expressed in a former
chapter, that a wilful and deliberate fraud on the
part of such an officer, being clearly proven, should
destroy all confidence in his official acts, irrespective




FRAUD AND ILLEGAL VOTING.         335
of the question whether the fraud discovered is of
itself sufficient to change the result. The party taking anything by an election conducted by such an.officer, must prove his vote, by evidence other than
the return.
~ 442. Fraud, in the conduct of an election, may
be shown by circumstantial evidence. It is sometimes a difficult matter to decide whether miscon-,duct on the part of election officers, is to be regarded as constituting fraud, or as only the result of
carelessness, ignorance, or negligence. If, however,
such misconduct has the effect to destroy the integrity of the returns, and avoid theprimafacie character, which they ought to bear, such returns will be
rejected, and other proof demanded of each vote
relied on. And this is the rule concerning such misconduct, whether it be shown to have been fraudulent, that is to say, prompted by a corrupt purpose,
or whether it arise from a reckless disregard of the
law, or from  ignorance of its requirements.  In either case the effect may be to destroy the integrity,of the returns. For example,'in Covode vs. Foster,
(2 Bartelet, 600,) a return was rejected, upon proof
that a hat and a cigar box were'used, instead of the
regular ballet boxes; that they were placed in or
near the window, through which the votes were re~ceived; that persons other than members of the
board were permitted in the room where the votes
were received, and were near the boxes, and were
passing in and out at pleasure during the day; that
there was great noise and confusion in the room;
that whisky was kept in the room, and members of,the board drank to intoxication; that challenges were




336       FRAUD AND ILLEGAL VOTING.
disregarded; and when the votes were counted, there
were six ballots in the box over and above the number of names on the tally list. These facts, together
with the further fact, that one Speers acted as clerk
without authority, and without being sworn, were
regarded by the committee, and by the House, as
furnishing good ground for rejecting the return.
~ 443. The fact that persons, other than members
of the board of election officers, are allowed to be
in the room with such officers when votes are being
received and deposited, will not of itself and in the
absence of any proof of misconduct on their part,
be sufficient to invalidate the return; but the admission of such persons is decidedly improper, especially if the persons admitted be the partisans of any
particular candidate or ticket, and the fact of their
presence and misconduct may be shown as circumstances tending to invalidate the return.  (Thomison vs. Ewing, 1 Brewster, 111.  Covode vs. Foster,
suapra.)
~ 444. It is not a valid objection to an election, that
illegal votes were received, if they did not change
the majority. If, therefore, a number of legal voters
withdraw from an election and decline to vote upon
the ground that illegal votes are being received, they
do so at their peril, and take their chances of being
able afterwards to show that the number of such
illegal votes was large enough to change the result.
(First Parish &c. vs. Stearns, 21st. Pick, 148.
Trustees &c. vs. Gibbs, 2 Cush. 39.)
~ 445. If an election is held according to law and
a fair opportunity is afforded for all legal voters to
participate, those who do not vote, are bound by the




FRAUD AND ILLEGAL VOTING.       337
result, (ib.)  It has been held that if the majority
expressly dissent, and do not vote, the election of
the minority is good.  (Oldknow vs. Wainwright,
1 Win. BI., 229.)  And see Commonwealth vs. Read,
2 Ashmead, 261. Brightlley's Election Cases 126.
~ 446. Votes must be cast in the manner provided
by law. Under a statute requiring that the manner
of voting shall be by ballot; votes given viva voce
cannot be counted, and in the case of an election by
a board of county commissioners, of a county Treasurer, it was held in Commonweallh vs. Read, supra,
that the only lawful mode of voting under the statute
of Pennsylvania, governing the election, was by ballot and that, inasmuch as the majority voted viva voce,
the minority voting by ballot would elect, even if
that minority consisted of but one member of the
board. It seems, however, that in case of an election
by a corporation, or a board composed of a definite
and fixed number of persons, a quorum should vote.
Where the elective body consists of an indefinite
number of persons, the principal of Commonwealth
vs. Read can be applied. Accordingly in State vs.
Burder, (38 Mo., 450,) it was held that in the absence
of any evidence to the contrary, it will be presumed
that the voters voting at an election, were all the
legal voters of the city, or that those who did not
see fit to vote acquiesced in the action of those who
did vote, and consequently are equally bound and
concluded by the result.
~ 447. This doctrine, however, must be taken
with some qualifications. If, for example, the election is held under such circumstances as to preclude
the possibility that a majority of the persons entitled
22




338       FRAUD AND ILLEGAL VOTING.
to vote could have had the opportunity to do so, it
is void, although held at the time and place provided
by law. It was accordingly held, in a number of
cases, arising in the so~uthern States during the rebellion, that where the larger part of the district
was at the time of the election, in the armed occupation of rebel forces, an election attempted to be
held in a portion of the district not so occupied was
void.
(Case of Ution, 1 Bartlett, 368.' Beach,    do    391.
"Segar,    do    414.
S Segar,    do    426.
"  Segar,    do    577.
i  Cloud e& Wing, 1 Bartlett, 455.
"  McKenzie,         do    460.
Grafton,          do    464.
"    c' Kenzievs.Kilchen do    468.
Chandler,         do    520.'~ 448. The true rule is this; if the opportunity to
vote is given to all alike, and if those who abstain
from voting do so, of their own fault or negligence,
then those who do attend and vote, have the right
to decide the result, but in a case where those who
fail to vote constitute a large proportion of the voting population, and where they did not have the opportunity to vote, there can be no valid election.
Elections in the south during the progress of the
rebellion were accordingly held valid, where there
was. an opportunity for the great body of the electors to participate.  (Flanders &  Huhn, 1 Bartl/et,
438.  Case of Clements, do, 366.)
~ 449. Every _circumstance which tends to show




FRAUD AND ILLEGAL VOTING.        339
that an election was fraudulent, may be proven, and
the Court must determine, from all the evidence,
whether fraud has been shown. As, for example, if
the aggregate vote' cast is largely in excess of the
number of legal voters, resident in the precinct, or if
the vote cast at the election in question is largely in
excess of the vote cast at any previous or subsegquent election, and this fact is not explained, or if a
large number of persons, unknown to the oldest
residents of. the precinct, were present at the election, and were seen voting, or if the list of voters
contains the names of a large number of persons
who are unknown to those inhabitants best acquainted with the people'residing within the limits of the
precinct, such facts as these, if unexplained, will
often establish the fact that frauds have been perpetrated, and illegal votes cast, and make it necessary to throw out the poll altogether, unless it can
be sifted and purged.  (Knox vs. Blair, 1 Bartlett,
521.)
~ 450. Where the law required a consolidated return of the vote of a county to be prepared by the,election officers, who officiated at the county seat, or
a majority of them, and at least one officer from
each of the other precincts, it was held that a con-.solidated return made up by a person not an officer,
and who had no legal connection whatever with the
election, and who had no right to handle any of the
papers, was fraudulent and void.  (Sloan vs. Rawzs,
43d Congress.)
~ 451. As we have already had occasion to remark, it is an unsettled question, whe'ther Congress
has power under the recent amendments to the con



340        FRAUD AND ILLEGAL VOTING.
stitution, to provide for the punishment of fraud,
violence and intimidation of voters generally, or.
only for such violence, fraud or intimidation as is
committed against a voter, or class of voters, on account of race, color, or previous condition of servitude.  (Ante Secs. 12 to 16.)  Thus in United States
vs. Cruikshank, (13 Am. Law Register, V. S., 630,)
Mr. Justice Bradley, sitting as Circuit Judge, laid
down the doctrine, that the act of Congress of May
31, 1870, commonly called the enforcement act, so
far as it assumes to regulate the right to vote, is beyond the scope of the fifteenth amendment, and void.
Also that an indictment, under said act, for conspiracy to hinder certain citizens of African descent, in
the exercise of their right to vote, cannot be sustained in a United States Court, without an allegation that the conspiracy was to hinder, &c., by reason of their race, color, or previous condition of
servitude.
~ 452. The opinion of Mr. Justice Bradley, in the
case last cited, is elaborate and able. The substance
of it is thus set forth in the syllabus:
"Where rights of individual citizens are not derived originally from the constitution, but are part
of the political inheritance from the mother country,
the power of Congress does not extend to the enactment of positive laws for the protection of such
rights, but only to the prevention of the States from
violation of them. But where a right is derived
from the constitution, and affirmative legislation is
necessary to secure it to the citizen, then Congress
may pass positive laws for the enforcement of.the
right, and for the punishment of individuals who interfere with it.




FRAUD AND ILLEGAL VOTING.        341
"These principles apply to the fourteenth amendment equally with the rest of the constitution, and
there can be no constitutional legislation under that
amendment, for directly enforcing the privileges, and
immunities of citizens of the United States, by original proceedings in the federal courts, where the
only constitutional guaranty of such privileges is
that no State shall pass any law to abridge them,
and where the State has in fact passed no such laws.
"The thirteenth amendment gave Congress power
to pass positive laws for doing away with slavery,
but it did not give power to pass laws for the punishment of ordinary crimes, against the colored race
any more than against any other race. That power
remains to the States.
"To constitute an offense, of which Congress and
the federal courts can take cognizance under this
amendment, there must be a design to injure a person, or deprive him of his right, by reason of his
race, color, or previous condition of servitude.
"The fifteenth amendment confers no right to vote.
That is the exclusive prerogative of the States. It
does confer a right not to be excluded from voting
by reason of race, color, or previous condition of
servitude, and this is all the right that Congress can
enforce.
"Semble, Congress may pass laws to protect this
right, under the fifteenth amendment, from individual violation, although the laws of the, States are not
repugnant to the amendment.  But offences against
the right to vote are not cognizable under the power
of Congress, unless they have, as a motive, the race
color, or previous condition of servitude, of the party
whose right is assailed.




342        FRAUD AND ILLEGAL VOTING.
"The'war of races, whether it assumes the dimensions of civil strife and domestic violence, or is limited to private outrage, is subject to the jurisdiction
of the United States, but outrage, or violence,,
whether against colored people or white people,.
which lacks this motive, and springs from the ordinary impulse of crime, is within the sole jurisdiction
of the individual State, unless the latter, by its laws,
denies to any race the full equality of protection.
An indictment for conspiracy to interfere with the
right, peaceably to assemble, &c., or with the right to,
bear arms, or "to deprive certain citizens of African
descent of their lives and liberties, without any due
process of law," where the State has not passed anylaw interfering with such rights, or denying equal
protection to all its' citizens, is not sustainable in a
United States Court, under any law that Congress
had power to pass.
An indictment for conspiracy to deprive certain
citizens of African descent, of the free exercise and
enjoyment of the right to the full and equal benefit
of all laws and proceedings, for the security of persons and property which is enjoyed by white citizens,
does not, in the absence of a specific allegation of a
design to deprive the injured persons of their rights
on account of their race, color, or previous condition of servitude, charge any offence cognizable in a.
United States Court."
~ 453. The doctrine of United States vs. Cruikshank, was endorsed by Hughes, District Judge in
U. S. Circuit Court, District of Virginia, but the opposite view was taken by Bond, Circuit Judge in the
same Court.-. (The U. S. vs. Petersburg 7udges oj.




FRAUD AND ILLEGAL VOTING.        343
Elections, et al, 14 Am. Law Reg., N. S., 105. Same
vs. same, ibid, 238.) In the course of his opinion in
this case in support of the constitutionality of the
enforcement act of May 31st, 1870, Judge Bond
says:
" There is a citizenship of the States, and a citizenship of the United States.
What the States may do by reason of this relationship, the United States may do. To give any
other construction to the clauses of the fourteenth
amendment we have been considering, would be to
say, that everybody born or naturalized in the United States, had a right to call himself citizen, and that
the amendment drew the relation of citizenship no
closer than before its adoption; and that in view of
the great contest just over, the people adopted an
amendment, declaring every one born or naturalized
in the United States, a citizen, and that Congress
might enforce that nominal relation, and the empty
claim to be called such by appropriate legislation.
To overrule this demurrer it is necessary to claim
only that the sovereignty of the United States is
equal in its sphere for the protection of the rights
and privileges of citizens, to that claimed by the
States in the protection of their own. Nor does
this construction of the amendment interfere with
the rulings of the Supreme Court in what is known
as the Slaughter-house case. The right to slaughter
animals within the limits of the city of New Orleans
was not a right appertaining to citizenship at all;
aliens might do it; but in this case the right to vote
is given to all citizens of the United States as such,
and no one else can exercise it. It is an immunity,




344       FRAUD AND ILLEGAL VOTING.
a defense, a privilege peculiar to that relation, and is
not shared in common with all persons whatsoever.
It was not personal to a man by reason of his manhood at common law. It is the endowment of the
State, peculiar to citizenship. Before the State was,
men had certain rights which belonged to them, because they were men. As our declaration of independence declares, men are born with certain inalienable rights. These rights we do not contend the
fourteenth amendment empowers the United States
to protect. It is only such rights, privileges and immunities as the State or United States confers upon
them, because of their citizenship to the United
States, that the laws of the United States can insure.
The fear that this construction will draw into the
United States Courts all cases of offences against
the person and property of individuals is groundless. The rights which are inalienable and belong
to men as men, and not as citizens, are life, liberty,
and the pursuit of happiness. The right to be secure in one's person or property is not peculiar to
citizenship. Citizens share that with aliens. Offences against the person as well as those against property are cognizable in the State Courts, except
where the controversy arises between citizens of different States, a choice of forum is given, but all
such privileges as are peculiar to citizenship, this
fourteenth amendment, it seems to me, was adopted
to enforce.
And all that the Supreme Court decided in the
slaughter-house cases was, that the United States by
force of the fourteenth amendment, was not clothed
with authority to enforce the rights, common to all




FRAUD AND ILLEGAL VOTING.        345
men, but those only peculiar to citizenship. The
right to vote is not the common right of all persons
resident in Virginia. It is not the right of all citizens of Virginia per se, because a person might be
a citizen of Virginia who is not a citizen of the'United States, and the constitution of the State confers
the right to vote, upon citizens of the United States
solely. The demurrer insists upon it, that as the
State has passed no law abridging the right of citizens in any particular, the indictment is bad. This
view leaves out of consideration the final clause of
the fourteenth amendment, which empowers Congress to enforce its provisions by appropriate legislation. The mischief to be prevented by the fourteenth amendment, was the obstruction of the citizens in the exercise of the rights of citizenship,
whatever they, from time to time, might be. There
is no way, as yet, pointed out by which a State can
be punished, and the mischief sought to be prevented, might be flagrant in violation of State law, or
without any color of authority under it.
The white people in Virginia might, without law
or in spite of it determine that no colored man
should vote, and the colored people in South Carolina might, in the same unlawful manner, unite to
violently obstruct their white fellow citizens from
exercising the elective franchise. The mischief to
be prevented would be flagrant, and yet if this demurrer be good, no remedy could be found. Now,
Congress, in this view of the case, has thought it
appropriate legislation to punish the individuals who
commit the wrong, whether under color of State:authority, or without pretending to any authority at




346       FRAUD AND ILLEGAL VOTING.
all. Who can say this is not appropriate legislations
It remedies the existing evil and a law which accom —
plishes or tends to accomplish, a purpose required
by the constitution to be effected, cannot be said by
a judicial tribunal to be inappropriate.  (Fugitive
Slave Law Act, Sept. 18/h, 1850.)
In answer to the objection that these indictments
do not allege that the obstruction had, was done on
account of race, color, or previous condition of servitude,.it is sufficient to say that the statute under
which the indictments are drawn, uses no such language, and it is most generally sufficient in setting
out in pleading a statutory offence, to use the words
of the statute creating it. But if it be contended
that the only power Congress had to pass the statute, was that granted by the fifteenth amendment
which prevented discrimination among voters, on account of race, color, or previous condition, &c., and
authorizes appropriate legislation to prevent such
discrimination, there is answer to it in this: that it is
impossible to prove, though the fact may be so, if a
body of colored men in South Carolina assault and
beat fifty white people at the polls, and prevent their
voting, and at the same time knock two colored
people down, that this was done on,account of race
or color. Congress thought to cut the thing up by
the roots, and enacted what is really and practically
the only appropriate legislation, as any person who.
has seen the efforts to enforce this section must
know, that no person shall disturb another at an
election, to prevent his exercise of the franchise,
and as the greater includes the less, if he can do so
from no motive, he cannot do it, because of race




FRAUD AND ILLEGAL VOTING.        34-7
color, or previous condition, &c. And from these
considerations we have drawn the following conclusions:
1. That by the fourteenth amendment to the constitution the people have provided a citizenship to
the United States direct, positive, paramount, springing from birth within its jurisdiction, or by statutory
naturalization.
2. That what the States have claimed to do by
virtue of their sovereign power, over their citizens,
the United States may do over its citizens by virtue
of its sovereign power, and the direct relationship
thus established.
3. That while the fourteenth amendment in furtherance of this view declares that no State shall
make nor enforce any law contrary to this provision,
it likewise declares that Congress shall enforce the
amendment by appropriate legislation. And that as
Congress cannot' punish a State qua State, it is appropriate legislation within the meaning-of the statute, to attain its end, i. e., the protection of the citizen in his right to vote, by punishing the individuals
who obstruct him in its exercise. And that even
under the fifteenth amendment, where experience
has shown the obstruction of voters on account of
race and color, cannot be, in the judgment of Congress, otherwise prevented, it is appropriate legislation to provide by statute that no such obstruction
shall take place at all. And that this construction
of the fourteenth and fifteenth amendments does not
affect the right of the States to define the rights of
citizenship, nor does it draw into the jurisdiction of
the United States Courts, the question of the inva



348       FRAUD AND ILLEGAL VOTING.
sion of the rights of persons or property as such.
It concerns only the rights which distinguish persons
as citizens, and which they hold in that character."
~ 454. These conflicting decisions leave the question of the true construction of the recent constitutional amendments still open. It is expected that
these important and interesting questions will receive the consideration of the Supreme Court of the
United States, at an early day, and the country will
await the authoritative exposition of that august
tribunal, and accept it when it comes as final and conclusive.
~ 455. It would be difficult, if not impossible, to
specify in detail the various acts of election officers,
which will constitute fraud. Without attempting
such specification, it will be sufficient here to say
that any act on the part of such an officer, by which
a legal voter has been designedly and wrongfully
deprived of his vote; or by which an illegal vote has
been purposely and unjustly received; or by which a
false estimate has been imposed upon the public as
a genuine canvass, is fraudulent. Fraud, however,
cannot be predicated of a mere emotion of the mind
disconnected from an act occasioning an injury to
some one. There must be a fraudulent transaction,
and a party injured thereby.  (People vs. Cook, 8 N.
Y., 67.)
~ 456. In Littlefield vs. Green, (Brzghtley's Eleclion Cases, 493,) it appeared that in a precinct containing only about four hundred and fifty legal voters,
there was actually cast, counted and returned, two
thousand, eight hundred and twenty ballots.  It also
appeared that a large number of names on the poll




FRAUD AND ILLEGAL VOTING.         3491
list were recorded in alpfhabetical order.  It was
a clear case of fraud, and the only question considered was, whether there was any proof upon which
the poll could be purged, and the legal votes separated from the illegal. The Court refused to allow
any of the votes cast at the precinct in question to
be counted, on the ground that there was no sufficient proof of any legal vote whatever.  It was
shown that there were over four hundred persons
in the precinct who were entitled to vote, but there
was no proof outside of the return, that any of these
voted, or as to how they voted. The Court properly rejected the return as utterly unreliable and unworthy of credit. The return was, therefore, not admissible in evidence for any purpose, and it was the
duty of respondent to have shown the legal vote by
other evidence. There was no proof upon which
the Court could purge the return and separate the
good votes from the bad, and therefore the whole
poll was necessarily thrown out.
~ 457. Naturalization certificates fraudulently issued by the clerk of a Court, without the order of
the Court itself, are void, and although regular on
their face, confer no right upon the holders, and
their fraudulent character may, on the trial of a contested election case, be shown by parol. (Ante ~ 21.)
But an election officer cannot go behind the certificate of naturalization.  (Ante ~ 35.)  Such an officer may, however, act upon the voter's admission of
facts, which, if true, avoid his certificate.  (Ante
~ 95.) As to punishment of fraudulent registration
for the purpose of voting for a member of Congress,
see ante ~ 309. As to effect of a fraud commit



350       -FRAUD AND ILLEGAL VOTING.
ted by election officers, which does not, of itself, affect the result, see anzte ~ 184, ~ 185. As to remedy for fraud, see ante ~ 340, note (f.) As to what
frauds will vitiate a return, see ante ~ 365, 366, 386,
387, 391, 392, 393.
~ 458. The remedy for frauds committed in the
conduct of an election, is not always by a contest in
a proceeding at law. The rule is, that if the statute
or the common law will afford adequate relief, equity
will not interfere. Where the election is for the
choice of one or more public officers, there is always
a remedy at law, and a court of equity will not take
jurisdiction.  Cases may, however, arise which do
not present the question which of two persons is
entitled to an office, and which are in their nature
unlike an ordinary contest. For example, a vote of
the people of a county may be taken upon the question of the location or removal of a county seat; or
upon the question of subscribing to the capital stock
of a railroad company; or upon subscribing or appropriating money to aid any work of internal improvement; or by the people of a city or town, upon
the question of adopting a charter. And it may
happen that the modes of proceeding provided by
statute, or by the common law, for contesting elections, or trying the title to an office, are altogether
inapplicable to the determination of questions of
fraud, accident or mistake, in the conduct of such
elections as these. In all such cases- equity will afford relief. Whether the proper remedy is by a bill
to enjoin the canvassing of the vote cast at such
an election, on the ground of fraud, or by bill filed
after the result is declared to set it aside, and enjoin




FRAUD AND ILLEGAL VOTING.       351
all proceedings under it, has been made a question,
but the better opinion is, that the latter is the proper
remedy. The canvassing of the vote concludes
nothing. The validity of the election, and of every
vote cast, remains an open question, which may be
subsequently tried by any Court of competent authority. Besides, the result cannot be legally known
until the vote has been canvassed. Proceedings,
therefore, to test the validity and bonafides of an
election, should be instituted after the canvass is
made, and the result announced, and this rule applies as well to such cases as must, for the reasons
stated above, be brought in equity, as to those in
which the remedy is at law. As to remedy in equity,
see People vs. Wiant, 48 Ill., 263. Boren vs. Smith,
-47 Ila., 485.
CHAPTER X.
PROSECUTIONS FOR VIOLATION OF ELECTION LAWS.
~ 459. Upon an indictment under the statute of
Massachusetts, for giving false answers to the selectmen who presided at a meeting for the election of
officers, or for wilfully voting at such meeting without being qualified, it is not necessary to prove that'the selectmen were legally chosen and qualified; it
is sufficient if it be proved that they were acting as
selectmen.  (Commonwealth vs. Shaw, 7 IMecalfe,
(Mass.,) 52.)




352       PROSECUTIONS FOR VIOLATION
~ 460. It is no cause for arresting judgment, on
an indictment for giving false answers to selectmen,
and for voting wilfully without being qualified, for
Governor, Lieutenant Governor, and Senators, for
the district of M., that it is not alleged that the district of M. is in the commonwealth. (lb.)
~ 461. An allegation in an indictment for illegal
voting, that a meeting of the inhabitants of the town
of A. was duly holden, is proved by evidence that
a meeting of the inhabitants of the town of A., who
were qualified to vote, was duly holden. (lb.)
~ 462. An indictment charged that the defendant
gave certain false answers to the selectmen, and that
such answers were given by defendant with the
fraudulent intent to procure his name to be placed
on the list of voters, and to obtain permission to.
vote. The evidence was that the defendant's namewas on the list of voters when he gave the false
answers. Held, that there was a material variance
between the allegation and the proof. (lb.)
~ 463. It has been held, that if a party indicted
under the statute of Massachusetts for wilfully giving in a vote at an election, knowing himself not to
be a qualified voter, admits on his trial that he voted
at the election, it is equivalent to an admission that
he voted wilfully.  (Commonwealth vs. Bradford, 9/h
Melca/fe, 268.) But this could hardly be true, if the:
term wilfully was here used in the ordinary sense as.
implying a corrupt or unlawful purpose. Such a
purpose could not be inferred from the mere fact of
voting. It was not, however, in this sense, that the:
term was used by the Court, but as the judge delivering the opinion declares, it was employed as mean



OF ELECTION LAWS.            353
ing only " designedly, purposely, with an intent, to
claim and exercise the right of suffrage."
~ 464. On the trial of a party indicted for wilfully
giving in a vote at an election, knowing himself not
to be a qualified voter, when the only question is
whether he had resided in the town where he voted,
six months next preceding the election, evidence
that he had resided in another town until within
seven months of the election, does not put upon him
the burden of showing that he had changed his residence, but the burden of proof to support the indictment remains on the commonwealth. (lb.)
~ 465. Evidence that a party consulted counsel as
to his right to vote, and submitted to them the facts
of his case,. and was advised by them that he had
the right, is admissible in his favor, on the trial of
an indictment against him for wilfully voting, knowing himself not to be a qualified voter, but is not
conclusive that he had not such knowledge.  (lb.)
~ 466. In an indictment, under the statute of
Pennsylvania, providing for the punishment of any
officer of election who shall " knowingly reject the
vote of a qualified citizen," it was held that the officer could not be held criminally liable for a mere
mistake of judgment, but only for a wilful disregard
of duty. It was also held that the presumptions are
in favor of the officer, the law presuming that he
has acted conscientiously, and not corruptly, until
the contrary appears.  (Commonwealth vs. Lee, 1
Brewster, 273.  Cushing's Election Cases, 98.)
~ 467. In considering whether an officer of election has acted wilfully and corruptly in rejecting a
vote which is offered, it is proper to look at the
23




354       PROSECUTIONS FOR VIOLATION
character of the question he was called upon to decide, and the manner in which he conducted himself
in hearing and disposing of it. If the question be
a plain one to the common understanding, one about
which men of ordinary intelligence would be likely
to agree, and if it be decided without deliberation,
and against the right, a strong presumption of wilfulness and corruption will arise.  But if it be a
question of doubt, or of difficulty, one about which
men of ordinary intelligence might honestly differ,
and if the judge acts with deliberation, and with an
apparent desire to decide rightly, and errs in his
judgment, it is fair to presume that it is a case of
honest error.  (lb.)
~ 468. In Commonwealth vs. Samuel Silsbee, (9
aMass., 416,) the indictment charged that the defen-,dant, a legal voter, at the town meeting held on the,eleventh day of March, 1811, at Salem, for the
choice of town officers, "did then and there wilfully
&c., give in more than one vote for the choice of selectmen for'said town of Salem, at one time of balloting."
This was not made an offense by the express provisions of any statute, but the Court held it to be an
offense at common law.
"There cannot be a doubt," says the court, "that
the offense described is a misdemeanor at common
law. It is a general principle that where a statute
gives a privilege, and one wilfully violates such privilege, the common law will punish such violation.
In town meetings every qualified voter has equal
rights, and is entitled to give one vote for every officer to be elected. The person who gives more, in



OF ELECTION LAWS.            355
fringes and violates the rights of the other voters,
and for this offense the common law gives the indictm-lent."
~ 469. The better opinion seems to be that
double voting or any other wilful and corrupt attempt to defeat a fair expression of the legal voters
through the ballot box is, in the absence of statute,:an offense which may, as a general rule, be punished
by indictment under the common law. This rule,
however, is not universal. For example, in Ohio it
has been decided " that the common law, though in
force in this State in all civil cases, could not be resorted to for the punishment of crimes and misde-meanors." (Key vs. Va/tier, 1 Ohio, 132. Van Valkenburg vs. The State, 11 Ohio, 404.)  And in some
of the States there are statutes expressly providing
that all crimes and misdemeanors shall be defined
and punished by statute.  (Bishop on Crim. Law,
Secs. 44-45.)
~ 470. Under a statute providing that any per-:son who shall vote "without being duly qualified,"
shall be punished, &c., and also providing that no
person is entitled to vote elsewhere than in the
township of his residence, it was held that a person
who was a resident of and qualified voter in, one
township, and who voted in another, was liable upon,an indictment under such statute. The same statute required the voter if challenged to swear to his:residence in the township, and it was held that he
was liable to indictment, both for perjury and for illegal voting.  (The State vs. Minnick, 15 Iowa, 123.)
~ 471. In the same case it was held that it is not
necessary in an indictment to state what officers




356       PROSECUTIONS FOR VIOLATION
were to be chosen at the election at which the illegal vote was given. The Court will take judicial
notice of the statutory provisions which provide
for the election of certain officers on a given day.
Nor is it-necessary that in such an indictment there
should be an averment that the defendant voted for
or against any particular person. It being shown
that defendant voted, the presumption that he voted
for some person, necessarily arises.
~ 472. Where the defendant, an unmarried man,
left his father's home, in D. township, and went to
F. township, on the Sunday before the election, remained there chopping wood until the evening of or
the next morning after the election, and (having,
while there, voted,) quit his work and returned home,
it was held that the verdict of guilty was fully warranted by the facts. (Ibid.)
Such circumstances as these are not only admissible to prove a wilful and corrupt violation of the
election law, but, if unexplained, they are well nigh
conclusive upon the question.
~ 473. On the trial of an indictment under a
statute for "wilfully voting when not a citizen of the
United States," evidence thatthe defendant consulted
"friends" as to his right to vote, "and was advised by
them  that such right existed," was held admissible.
A person who votes illegally cannot be excused on
the ground that he has taken counsel of those no
better informed than himself. If he had consulted
persons learned in the law, and being advised by
them with full knowledge of all the facts that he was
a legal voter, this fact might have been shown as
tending to disprove a criminal intent, but such evi



OF ELECTION LAWS.            357
dence would not be conclusive. [State vs. Shelley,
15fh Iowa, 404.]
~ 474. If an indictment against a party for voting
illegally, charges that the election was held on the
day fixed by law, what officers were then to be elected, and that such election was authorized by law, it
is not necessary to aver further that the election
was held by the proper officers. As we have seen
it is not necessary even to state what officers were
to be chosen at the election, because the law fixes
that, and the Courts must take judicial notice of it.
An averment that the defendant voted illegally at
an election held upon a specified day, and authorized
by law, includes the idea that the election was held
by the proper officers. Such an averment clearly
and necessarily implies not only that the election
held that day throughout the State was authorized,
but also that the polls at which the defendant voted,
were opened, and the election conducted by the
properly constituted officers.  (The Sta/e vs. Douglass, 7/h Iowa, 413.)
~ 475. It is a disputed question whether under an
indictment for illegal voting it is necessary, in order
to convict, to show that the defendant had knowledge of his disqualification.  In Commonwealth vs.
Aglar, (Thacher's Criminal Cases, 412. Brigh/ley's
Election Cases, 695,) the municipal court of the city
of Boston held that a person is not liable criminally
for illegal voting, unless he knew at the time that
he was not a qualified voter, and that he was doing
or attempting to do, an illegal act; and that if he
honestly believed that he had a right to vote, it is
not a wilful act punishable by indictment. The same




358       PROSECUTIONS FOR VIOLATION
doctrine prevails in Rhode Island, where the courts;
hold that to sustain an indictment for illegal voting,
the ballot must be fraudulently cast, that is, with
knowledge by the voter of his disqualification.
(State vs. Macowber, 7 Rhode Island, 349.)  It has
also been held that whether the offense was wilfully
committed, is a question for the jury. (Commonwealth vs. Wallace, Thach. Cr. Cases, 592.)
In Tennessee it is held, that ignorance of the law
will not excuse illegal voting, but that in order to
convict, it must appear that the voter knew a state
of facts which would, in point of law, disqualify him.
(McGuire vs. State, 7 Humyph., 54.) And so in North
Carolina.  (State vs. Hart, 6 yones, [Law,] 3389.
State vs. Boyell, 10 Ired, 336.)
In California the courts have avoided both extremes, and planted themselves upon a sort of mid —
dle ground, by adopting the following rule:  Where
an unlawful act is proved to have been done by the,
accused, the law in the first instance presumes it to.
have been intended, and the proof of justification
or excuse lies on the defendant. (People vs. Harris,,
29 Cal., 578.)
~ 476. It is held in Indiana that on the trial of an
indictment for illegal voting, the defendant's statements made at the polls on being challenged, are
not admissible evidence in his favor, nor is the decision of the election officers in favor of his right to
vote any defense.  (Morris vs. State, 7, Black f,
607.)
~ 477. The question when the act of voting is to.
be considered as complete, is also a disputed question. Thus, in Alabama it was held that it is not.




OF ELECTION LAWS.             359
complete until the ballot is put into the box, and the
name of the voter registered by the clerks, and that
a defendant cannot, therefore, be convicted of illegal voting, if the act is not thus consummated. [Blackwell vs. Thompson, 2d Slew. & Pori, 348.]  But in
Tennessee it is held that when a voter presents himself before the judges, hands his ticket to the officer, and his name is announced and registered, the
act of voting is complete, without the actual placing
of the ballot in the box.  [Sleinwehr vs. Stale, 5
Sneed, 856.]
~ 418. In Iowa it has been held that where a
statute provided that where any person knowing himself not to be qualified, shall vote at any election
authorized by law, he shall be punished, &c., it is
sufficient if the indictment follow the language of
the statute, and it need not state in what the disqualification consisted.  [Stale vs. Douglass, 7 Iozewa,
413.]  But this is not the uniform  doctrine of the
courts of this country. The weight of authority, as
well as of reason, probably is, that the defendant is
entitled to be advised by the indictment more definitely as to the nature of the charge against him, e.
g,, if he is charged with voting without being qualified, the indictment ought to state wherein he is disqualified.
~ 479. A statute of New Jersey provided for the
punishment of "any person who shall vote or fraudulently offer to vote," knowing that he is not duly
qualified, &c. It was held by the Supreme Court
of that State, that in charging a defendant with the
offense of voting illegally under this statute, it was
not necessary to allege that the illegal vote was




360       PROSECUTIONS FOR VIOLATION
fraudulently given, but in charging such defendant
with offering to vote illegally, it must be charged
that he fraudulently offered to vote, knowing that
he was not duly qualified, &c. It was also held in
the same case that an indictment which failed to
specify the particular disability which is relied on as
a disqualification of the defendant as a voter, is fatally defective.  [State vs. Moore, 3 Dutch., 105.]
And see also State vs. Tweed, 3 Dutch., 111.
~ 480. And in Tennessee it is held that an indictment charging the defendant with having "unlawfully and knowingly voted, not being a qualified voter, is bad," though in the words of the statute.
There are various disqualifications, and the indictment must show which one is wanting.  [Pearce vs.
State, 1 Sneed, 937.] These cases are in conflict
with State vs. Douglass, supra, and the doctrine of
the latter case is sustained by The United States vs.
Quin, 12 Int. Rev. Rec., 151, and U. S. vs. Bullard,
13 do 195.
The ground upon which the courts proceed in
holding that it is necessary to specify the disqualification, is this. There are numerous disqualifications,
such as want of age, non-residence, having once
voted, having been convicted of felony, non-payment of taxes, want of registration, and the like;
it is, therefore, but fair that the defendant should be
advised by the indictment, which of these disqualifications he is charged with, in order that he may intelligently prepare his defense. And this reasoning seems entirely sound.
~ 481. Nor is it always sufficient to charge an offense in the words of a statute. Whether this is




OF ELECTION LAWS.            3861
sufficient or not will depend upon the question whether to do so will make the indictment as specific as, according to the well known rules of criminal pleading, it ought to be. Thus, where the statute provided
that " if any inspector, judge, or clerk, shall be convicted of any wilful fraud in the discharge of his duties, he shall undergo an imprisonment," &c. It was
held that an indictment charging that these officers
"' did commit wilful fraud in the discharge of their
duties," without stating the particular acts constituting the fraud, was fatally defective. [Commonwealth
vs. Miller, 2 Parsons, 480.  Brightley's Election
Cases, 711.] It was further held in the same case,
that the inspectors, judges, and clerks, cannot be
joined in one indictment as defendants, their offices
being distinct and their duties distinct and separate.
And in Commonwealih vs. Gray, [3 Duvall, 373,] a
similar ruling will be found. In that case the indictment was against one of the judges, and charged
him with knowingly and unlawfully receiving the
vote of an unqualified person. This was held sufficient, without showing whether the other judges of
the election were opposed to, or in favor of allowing the illegal vote to be cast. And see also Commonwealth vs. Ayer, [ Cush. Elect. Cases,, 674.]
~ 482. And it has been held in Indiana, that an
indictment which charges that the defendant voted
at an election "not having the legal qualifications of
a voter," is bad for not specifying what qualifications
the voter lacked-for alleging, not a fact, but a conclusion of law.  [Quinn vs. The State, 35 Ind., 485.]
Under such an indictment, if held good, the State
might prove the want of any one of the many qual



362       PROSECUTIONS FOR VIOLATION
ifications required to be possessed by a voter, and
the defendant could not learn from the indictment,
precisely what he is expected to meet. This was,
therefore, held to be one of the cases in which it is
not sufficient to charge the offense in the words of
the statute.
~ 4838. Mere irregularities in the manner of holding or conducting an election, constitutes no defense:
to an indictment for illegal voting. If there was an
election held in pursuance of law, at the proper time
and place, it is sufficient. (State vs. Cohoon, 12 Ired,
178.) But if the election is an illegal one, the indictment cannot be maintained. [State vs. Williams,
25 Maine, 561.]
~ 484. Inasmuch as illegal voting is a local offense,
it is necessary that an indictment therefor should
state with precision, where the illegal vote was cast.
[State vs. Fitzpalrick, 4 Rhode Island, 269.]
~ 485. In Maine it has been held that an indictment against a person for voting twice at one balloting, for the choice of a selectman at a town meeting, cannot be sustained unless such meeting was
warned and notified in the manner prescribed by the
statute.  [Slate vs. Williams, 25 Maine, 561.]  But
this ruling, to be sustained, must be based upon the
fact, that under the statute of that State no valid
town meeting for the choice of selectmen, could be
held, without such warning and notice. The true
rule governing indictments for illegal voting is that
the election at which the illegal vote was cast, was a
lawful and valid election. An informality or irregularity which does not go to the validity of the election itself, cannot be pleaded as a defense to such an
indictment.




OF ELECTION LAWS.             363
~ 486. On the trial of an indictment under a
statute prohibiting a person from voting at any election, who has been convicted of any infamous crime,
unless he shall have been pardoned and restored to
all the rights of citizenship,-the fact that the defendant was a minor when convicted of the felony, and
also when discharged from prison, is no defense.
[Hamilton vs. People, 57 Barb., N. Y., 625.]
~ 487. The statute of Michigan, of 1851, provided that "if any person offering to vote shall be
challenged as unqualified, &c., the chairman of the
board of inspectors shall declare to the person so,
challenged, the constitutional qualifications of an
elector," after which, if he insists upon his right to
vote, the inspectors are required to tender him the
statutory oath. Subsequently, in 1859, the legislature of the same State passed a registry law, which,
among other things, provided "that the vote of no
person shall be received whose name is not registered." Under these two statutes it was held that
the inspectors were not bound to administer the
oath to an unregistered voter, though he demanded
it.  [1Wattles vs. The People, 13 Mich., 446.]
~ 488. It is no defense to a prosecution for votinga second time at an election, to show that the first
vote was illegal and not entitled to be counted.
[Slate vs. Perkins, 42 VI., 399.]
~ 489. A person charged with a public offense is.
entitled, before he can be required to answer, to demand a specific averment of thefacts which constitute the offense charged. It is, therefore, not sufficient to charge in general, in an indictment, that the
officers of an election did commit wilful fraud in the




364       PROSECUTIONS FOR VIOLATION
discharge of their duties; there must be some specific averment of a fact which constitutes the fraud
charged. It is not sufficient to lay the offense in the
words of the statute, unless those words serve to
~allege the.fact with all the necessary additions, and
without any uncertainty or ambiguity. (2 Parson's
Select Cases, 480.)
~ 490. The statute of Rhode Island provided for
the punishment of any person who at "any election:shallfraudulen/ly vote, not being qualified."  Under
this statute it was held, that to warrant a conviction
it must be shown that the vote was fraudulently cast,
that is, with knowledge by the voter that he was not
qualified to vote; and that an honest mistake by a
voter, as to his right, and an assertion of it by voting,
will not render him liable under the statute, even
though he is cognizant of thefacts which constitute
the defect in his right.  [State vs. Macowber, 7 R. I.,
349.] In this case it is said that "the distinction between acts done honestly, under a mistaken sense
of right, and acts done fraudulently, with a consciousness of wrong, is familiar to every one who
has had occasion to trace the boundary line between
trespass and larceny."  And see also Slale vs., McDonald, 4 ilarrington, 555.  State vs. Porter, do,
556.
~ 491. Substantially the same doctrine was laid
down in Slate vs. Smilh, el al, [18 N. H., 91.]  This
was an indictment charging defendants, as selectmen,
with erasing from the list of voters of the town of
Boscamen, the name of Timothy Kelley, alleged to
have been a legal voter of that town. It was, under
the statute, the duty of the selectmen to hear all




OF ELECTION LAWS.            365
applications for the insertion of the name of any
person upon the list, or for the erasure of any name
therefrom, and to hear proof, and decide all such applications. And the statute provided that "if any
selectman at any session holden for the correction
of any list of voters, shall * * * * knowingly
erase from or omit to insert the name of any legal
voter, he shall be punished," &c. It was held that
the selectman could not be punished for an erroneous decision merely, but only for corruption.
~ 492. And it was observed by the Court, that
notwithstanding the effort to distinguish by law
clearly and plainly the persons who are entitled to
vote, "there are still cases of no little difficulty constantly arising under those laws, some of which
might well tax the acumen of persons more accustomed to investigate such questions than many of
those persons are, who are required in every town
to decide and to settle them. They are questions,
in short, in the decision of which errors are not unlikely to occur, and it is certainly an anomaly in the
law if those, who are charged with the duty of deciding them, are liable to be charged criminally for
forming an opinion that the court may, upon inquiry,
pronounce to be erroneous."
~ 493. And in Wisconsin the same doctrine was
very clearly and forcibly stated in Byrne el al, vs.
The State, [12 Wis., 519.1  It was there very clearly
shown that the rule that ignorance of the law excuses
no man, has no application to acts which are in their
nature official, and done in the exercise of a discretionary power conferred by law.. That imaxim  ap-.plies to acts which are voluntary, and will estop




366   CIVIL LIABILITY OF ELECTION OFFICERS
such officers from setting up their ignorance of the
penalties inflicted by a statute, as an excuse for their
wilful violation of the duties which it imposes upon
them. Where the officer is obliged by law to act
and to decide, the most that reason or justice can
require of him, is a bonafide effort to discharge his
duties according to the best of his knowledge and
ability.
CHAPTER  XI.
CIVIL LIABILITY OF -ELECTION OFFICERS FOR
MISCONDUCT IN OFFICE.
~ 494. The general rule is that an officer of election, or of registration, who shall wilfully and corruptly refuse to any citizen who is duly qualified,
the right to vote, or to register, is liable in damages
to the person injured. In several of the States, as
we shall presently see, it is regarded as sufficient to
show that the plaintiff has been unlawfully deprived
of his right, without proof of a malicious or corrupt
purpose on the part of the officer, but the general
doctrine is as above stated.  In Massachusetts,
where it is not necessary to show malice, it has been
held that the officer is not liable, if he acted under
a mistake, into which he was led by the conduct of
plaintiff.  (umpihrey vs. Kingman, 5 Metcalfe, 162.)
~ 495. In England, and in most of the States of
the Union, the rule above stated is regarded as well




FOR MISCONDUCT IN OFFICE.        367
settled, and no action is held to be maintainable:against an officer of election for rejecting the vote
of a citizen, without proof that such rejection was
-wilful and malicious. In Massachusetts, by a series
of decisions, the law is settled otherwise. (Killiam
vs. Ward, 2 Mass., 236.  Lincoln vs. Hapgood, 11
Mass., 350. Henshaw vs. Foster, 9 Pick., 312.  Capen vs. Foster, 12 Pick., 485. Blanchardvs. Stearns,
5 Melcalfe, 298.)  But in the latter case it was held
that in order to recover, the plaintiff in such an action must allege and prove that he furnished defendants with sufficient evidence of his having the legal
qualifications of a voter, before defendants refused
to receive his vote. This decision comes almost up
to the rule as it exists in most of the other States,
because if the voter furnished sufficient evidence of
his right, that fact would go far to prove wilfulness
on the part of the officer, who, in the face of such,evidence, refuses him the privilege of voting.
~ 496. The rule laid down in the Massachusetts
cases has been followed in Ohio, (effgries vs. Ankeney, 11 Ohio, 373. Anderson vs. Milliken, 9 Ohio
State R., 568,) and also in Wisconsin, (Gillespie vs.
Palmer, 544.) But the weight of authority is decidedly the other way. (jenkins vs. Waldron, 11
7ohnson, [N. Y.,] 114.  Weckerly vs. Guyer, 11 S.
& R., 35. Moran vs. Rennaud, 3 Brewster, 601.
Commonwealth vs. Sheriff) 1 Brewster, 183. State
vs. Smith, 18 N. H., 91. State vs. Daniels, 44 N.
H., 383. State vs. McDonald, 4 Harrington, [Del.]
555. State vs. Porter, ibid, 556. Carter vs. Harrison, 5 Black f, 138. State vs. Robb, 17 Ind., 536.
Peaney vs. Robins, 3 7ones, [Law,] 339.  Cauli)eld




368   CIVIL LIABILITY OF ELECTION OFFICERS
vs. Bullock, 18 B. Mon., 494. Morgan vs. Dudley,
ibid, 693. Miller vs. Rucker, 1 Bush., 135. Rail
vs. Potlls, 8 HumpA., [Tenn.j 225. Bevatrdvs. Hofzan, 18 Ind., 479.  Anderson vs. Baker, 23d Md.,
531.) Even in those States where the Massachu'
setts rule prevails, it is believed that no more than
nominal damages is ever allowed, in the absence of
proof of a corrupt purpose.
The action in those States is regarded rather as
one for the determination and settlement of the
plaintiff's right to vote, than as a suit to recover damages.  (Brighlley's Election Cases, 194.)  In 7effries
vs. Ankeney, supra, the Supreme Court of Ohio said:.
"It is generally true that no suit lies against an
officer for a mistake in the exercise of his judicial
discretion; but when we reflect how highly the
privilege of voting is generally valued, and that the
legislature has provided, and the forms of law admit, no other remedy than this action, we unite in the
opinion that a necessity exists for entertaining this
remedy. In the absence of malice,, where the suit.
is brought merely to assert the right, the damages
will be nominal and small."
~ 497. And the Supreme Court of Mass., while
maintaining the rule that election officers are liable
for rejecting a legal vote without proof of malice,,
seems to have endeavored to so administer the law
under that rule as to take away much of its severity.
Thus in Lincoln vs. Hapgood, [11 Mass., 357,] the
Court said:
"But, notwithstanding we deem it necessary that
this action should be supported as the only mode of
ascertaining and enforcing a right which has been




FOR MISCONDUCT IN OFFICE.      369
disputed, we do not think it ought to be a source of
speculation to those who may be ready to take advantage of any injury, and turn it to their profit, to
the vexation and distress of men who have unfortunately been obliged to decide on a question sometimes intricate and complicated, but who have discovered no disposition to abuse their power for
private purposes. And we, therefore, think that juries should always, in estimating the damages, have
regard to the disposition and temper of mind discoverable in the act complained of, and probably the
Court would determine that a sum, comparatively
not large, would be excessive damages, in a case
where no fault but ignorance or mistake was imputable to the selectmen."  And in Henshaw vs. Fosle,;
[9 Pick., 312,] the same Court assessed a fine of
only one dollar against an election officer who had
rejected a legal vote, but who had done so in the
honest discharge of his supposed duty.
~ 498. The Supreme Court of Pennsylvania, in
Weckerly vs. Geyer, laid down as the law of that
State the rule that malice must be shown to sustain
an action on the case against an officer of an election for refusing.the plaintiff's vote, and enforced it
as follows:
"We have no doubt that malice is an ingredient
without which the action cannot be supported. By
malice, I mean the refusal of a vote from improper
motives and contrary to the inspector's own opinion.
It is not necessary that this should be expressly
proved; the jury may infer it from circumstances;
direct and positive proof in a case of this kind is
hardly to be expected. But a man who is placed in
24




370   CIVIL LIABILITY OF ELECTION OFFICERS
public station as an officer of the commonwealth, or
of a corporation, in which, though not strictly a judicial office, he must necessarily exercise his judgment, (such as inspector or judge of an election) is
not liable to an action, provided, he act with purity
and good faith; but, that he is responsible if he act
wilfully and maliciously, was decided in the English
House of Lords in the case of Ashby vs. White, 1
Bro, P. C. 49, and has been held for law ever since."
~ 499. Ithas been held that registering officers
are not responsible, in damages, for refusing to register an elector however erroneous their refusal may
be, if produced by an honest mistake or error of
judgment, but if they act corruptly or maliciously,
they are liable to the person injured. [Pike vs. Magoun, 44 Mo., 492.1
~ 500. In this latter case the doctrine is laid down
that a judicial officer is in no case to be held liable
in damages for an error of judgment, and where
there is no malice, and this doctrine is supported by
the citation of numerous authorities.  The Court
further inquires whether the officers of registration,
under the statute of Missouri, were judicial officers,
and upon this point the Court say:
"Their duties were partly ministerial and partly
judicial; that is, they were required to exercise a
discretion and judgment when  determining  the
qualifications of those presenting themselves for
registration," and while holding that these officers
were not in a strict sense, judicial officers, the Court
yet held that they were, like judges of election,
clothed with discretionary power, and acted quasi
judicially, and that it was therefore necessary to al



FOR MISCONDUCT IN OFFICE.         371
lege and prove that their official action was knowingly wrongful, malicious or corrupt, in order to hold
them liable in damages therefor.
~ 501. The duties of election officers are generally clearly defined by statute, particularly as to the
manner of conducting the election and of determining disputed questions as to the right of individuals
to vote. In some of the States if the voter will
make an affidavit, the form or substance of which is
prescribed, his vote is to be received without further
evidence or inquiry. Such is the law of Illinois. —
[Sfiragins vs. Houghton, 3 Ill., 377, Brightley's Electlion cases, 162.] And in New York, [People vs. Pease,.30 Barbour, 588.]
It is the policy of the law upon this subject to
leave as little as possible to the discretion of election officers. In the statutes of most, if not of all of
the States, there are numerous and minute provisions framed for the purpose of anticipating questions, which may arise at the polls, and the manner
of their determination.' These statutes are wisely so
framed, as to prevent uncertainty and debate as to
the proper decision of questions arising amid the
confusion and excitement of an election. For example, the statute of Illinois, under which the case
of Spragins vs. Houghton arose, prescribed the
form of the oath to be taken by a voter when challenged and provided that "if the person so offering
his vote shall take such oath or affirmation, his vote
shall be received, unless it shall be proved by evidence, satisfactory to a majority of the judges, that
such oath or affirmation is false." And it was held
that under this statute the judges had no discretion;




372  CIVIL LIABILITY OF ELECTION OFFICERS
they were bound to receive the vote of a person
who took the oath, unless proof was offered to show
that the oath was false. And this construction of
the Illinois statute was doubtless correct in its application to the case decided, for it is beyond question
that if the officer obeys such'a statute he cannot
incur any of its penalties. But a case may arise
where the officer knows, or has reason to believe,
that notwithstanding the oath taken by a person offering to vote, he is not a legal voter, where in fact
the officer knows, or has reason to believe, that the
oath is false. May not the officer reject such a vote
notwithstanding the person offering it takes the
oath, and justify his act by proving that the oath was
false? In such a case, of course, the officer takes
upon himself the burden and the risk of proving the
oath of the alleged voter to be false.
Thus in Slate vs. Robb, [17 Indiana, 536,] it was
held that the election board, whose duty it was to
decide upon the qualifications of voters, may refuse
the vote of a person who takes or offers to take the
oath prescribed by law as to his qualifications, but
they do so at the peril of being able to show that
he was not a legal voter, upon a prosecution for refusing the vote. It was further held, however, that
when the person offering to vote takes the prescribed oath, the board are justified in receiving the vote,
unless it can be shown that they acted corruptly,
and were cognizant of the fact that he was not a
legal voter. The doctrine of this case seems to be
that if the board know that the voter swears, or offers to swear falsely, and that he is not entitled to
vote, it is not only their right, but their duty to re



FOR MISCONDUCT IN OFFICE.        373
fuse the vote, notwithstanding such offer to swear.
The statute of Indiana, under which this case arose,
unlike that of Illinois, suzira, was intended to, and
did preclude the election board from  taking testimony relative to the right of any person to vote
who might offer to take the oath therein prescribed.
The plaintiff offered his vote, and offered to take the
oath prescribed, but the defendant, who was an inspector of the election, refused to administer said
oath, or to permit him to vote, and he was permitted
to prove as his justification, that the plaintiff was not
a legal voter, and that if he had taken the oath, he
would have sworn falsely.
~ 502. Subject to the qualification above stated,
the general rule is that a statute prescribing the
form of oath to be taken by a person offering to
vote, and requiring the vote to be received if the
oath be taken, leaves no discretion in the judges of
election, and takes from them all power to decide
upon the qualifications of a voter. Thus in New
York it is held that, except' in certain special cases,
(as where the party has been convicted of a crime,
or has made a bet on the election,) the voter is made
the judge of his own qualifications and his conscience, for the occasion, takes the place of every
other tribunal. If there is any doubt as to the voter's qualifications, the inspectors are required to examine him on oath, touching the same, and if, in
their opinion, he be not duly qualified, they are to
admonish him as to the points in which they consider
him deficient, nevertheless, if after this he persists in
his claim to vote, they are compelled to administer
to him the general oath in which he affirms the pos



374   CIVIL LIABILITY OF ELECTION OFFICERS
ssession in himself of all the legal qualifications, and.
if he take the oath, his vote must be received; the
inspectors have no discretion in the matter; they can
only reject the vote, if he refuses to answer the
interrogatories put to him touching his qualifications,
or to take the general oath.  (People vs. Pease, 30,Barb., 588. 27,N. Y., 45.)
~ 503. In Bacon vs. Benchley, el al, (2 Cush., 100,)
which was an action to recover damages against selectmen, for refusing to place the plaintiff's name on
the list of voters, it appeared that the plaintiff was
duly qualified, that he applied to the selectmen to.
place his name on the list, and that they refused the
application. It further appeared, however, that afterward, and before the close of their session, the
selectmen re-considered their refusal, and did place
plaintiff's name on the list, but of this he was not informed. Held, that plaintiff could not recover, and
that it was his duty to ascertain after the close of
the "list," that his name was not on it, before he
could hold the selectmen liable. This, for this reason, that the selectmen had the right to alter or correct the list, and to insert a name on it, up to the
close of the session for revising. The Court was.
of opinion that the defendants did seasonably place
the plaintiff's name on the list.
~ 504. We have already seen, that according to
the decisions in Massachusetts, it is incumbent upon
a person offering to vote to furnish to the selectmen
sufficient evidence of his having the legal qualifications of a voter. It seems that where a voter before
offering his vote, makes statements not under oath,
to the selectmen, relating to his residence, in an ac



FOR MISCONDUCT IN OFFICE.        375
tion against such selectmen for refusing his vote, the
plaintiff may prove that he made such statements,
and what they were.  (Lombard vs. Oliver and others, 7 Allen, 155.)  But it would doubtless be otherwise if the plaintiff had been requested by the selectmen to make his statement under oath, and had not
done so. In determining the question of a party's
right to vote, the statements of such party concerning his residence, cannot be overlooked or disregarded, but the party must, if required, make oath
to his statement.
~ 505. If a registered voter tenders his vote at an
election, and the judges wilfully, corruptly and fraudulently refuse to receive it, he is entitled to recover
in an action against them, such exemplary damages
as the jury may consider proper under the circumstances.  (Elbin vs. Wilson, 33 Md.)  But in no
case can a party recover exemplary damages unless
wilful and corrupt action on the part of the officer charged, is proven, and indeed, (as we have
already seen,) in most of the States, the officers of
election are not liable at all-not even for actual
damages —unless a corrupt purpose is shown. It
was also held in the same case, that where the defendant claimed to have rejected plaintiff's vote upon
the ground of his disloyal sentiments, it was proper
for plaintiff to show that defendant, as register, had
permitted another person, known to hold the same
disloyal sentiments, to be registered as a voter. This
was admittted as tending to show malice as against
the plaintiff.
~ 506. And it was held in the same case, that in
an action for damages against judges for corruptly




376   CIVIL LIABILITY OF ELECTION OFFICERS.
refusing the vote of the plaintiff, the fact that the
defendants knew that plaintiff differed from them in
his political sentiments is admissible as an element
of proof to be considered by the jury together with
other facts, to determine how far they were influenced by bias, prejudice, or corrupt motives in rejecting his vote. This ruling was probably correct,
and yet such proof should have little or no weight,
unless it appears from the acts, declarations, or conduct of the defendants, that they were not disposed
to treat fairly and honestly the claims of a political
opponent. The fact that the defendants and the
plaintiff differed in politics standing alone, should be
held as a fact of no moment. If it were otherwise
the judges of an election would not be safe in deciding against the rightofa political opponent to vote,
except in the clearest case. It would destroy that
independence that is requisite to judicial fairness.
~ 507. Where an officer of election has decided a
difficult and doubtful question, against the right of a
person claiming a vote, he will be deemed, until the
contrary appears, to have acted without malice, even
though his decision may have been erroneous.
Thus, in New York, the inspectors refused the vote
of a registered citizen, who had been challenged on
the ground that he was a deserter from the U. S.
military service, it appearing that by the act of Congress, deserters were rendered incapable of exercising the rights of citizens. In a suit against these
inspectors for rufusing this vote, it was held that they
were not liable without proof of malice notwithstanding the fact that the act of Congress was afterward
construed to refer only to deserters who had been




ORGANIZATION AND POWERS.        377
properly convicted as such.  (Goechens vs. Matthewson, 5 Laws, N. Y., 214.)
CHAPTER XII.
OF THE ORGANIZATION AND POWERS OF LEGISLATIVE
BODIES.
~ 508. Inasmuch as the failure of the legislative
department of a government, (whether national,
State, or municipal,) to organize and proceed regularly in the discharge of its duties, may prove a most
grave and serious evil, it is important that the rules
governing the organization of such bodies be defined as clearly as possible, and be adhered to and
enforced with great strictness. It will be our purpose in this chapter, in the first place, to lay down
at least the more important of these rules, and secondly, to speak briefly of the power of a legislative
body over its members, and over other persons.
~ 509. It is to be observed in the outset that when
a number of persons come together, each claiming
to be a member of a legislative body, those persons
who hold the usual credentials of membership, are
alone entitled to participate in the organization.
For it is, as we have had occasion several times to
repeat, a well settled rule, that where there has been
an authorized election for an office, the certificate of
election, which is sanctioned by law or usage, is the
prima facie written title to the office.  (Kerr vs.
Trego, 47 Pa. State Rep., 292.)




378        ORGANIZATION AND POWERS
~ 510. Of course the first organization must be
temporary, and if the law does not designate the person who shall preside over such temporary organization, the persons assembled and claiming to be members may select one of their number for that purpose. The next step is to ascertain in some con-.
venient way the names of the persons who are, by
reason of holding the proper credentials, primafaciee
entitled to seats, and therefore entitled to take part
in the permanent organization of the body. In the
absence of any statutory or other regulation upon
this subject, a committee on credentials is usually appointed, to whom all credentials are referred, and
who report to the body a roll of the names of those
who are shown by such credentials to be entitled to
seats. This report being adopted, the body is prepared to proceed to the election of permanent.
officers, by such mode as the rules of the body may
prescribe.
~ 511. There are, however, in this country numerous statutes, prescribing the mode of organizing
legislative bodies. Thus, it is prescribed by an act of
Congress that in the organization of the House of
Representatives of the United States, the clerk of
the preceding House shall preside and shall make
up a roll of members. He is required to place upon
such roll the names of all persons claiming seats as
representatives, from States which were represented
in the next preceeding Congress, and whose credentials show that they were regularly elected in accordance with the laws of their States respectively-or
the laws of, the United States. In case of a vacancy
in the office of clerk, or of his absence or inability to




OF LEGISLATIVE BODIES.        379i
act, the duties imposed upon him relative to the.preparation of the roll or the organization of the House
devolve upon the sergeant at arms, and in case of
vacancy in both of said offices, or the absence or inability of both to act, the said duties are to be performed by the door-keeper of the House. (For this
statute in full, see appendix to this volume.) And
by the laws of most of the States, similar statutory
regulations are provided. Thus, in many of the
States the Lieutenant Governor is ex officio president of the State Senate, and presides over the organization of the new Senate which commences.
with the expiration of his term of office. In most
of the States, (and perhaps in all of them,) the lower
House of the General Assembly is required to be:
called to order by the clerk of the preceding House,.
and to be organized by proceedings similar to those
above described, in the organization of the lower
House of Congress.
~ 512. Of course no business other than that
which pertains to the organization of the body, can
be properly transacted until after the members have
been sworn according to law. In the absence of'
any law designating the person by whom the oath of
office shall be administered, it is usual to require the
services of a judge of one of the higher Courts,
and the chief justice of the Supreme Court of theState is apt to be called upon to discharge this duty,.
though it is presumed that in the absence of any
established rule upon. the subject, the oath may be
administered by any person having authority to ad —
minister oaths generally.  Immediately upon the,
election of a permanent presiding officer, and upon.




380        ORGANIZATION AND POWERS
his being sworn, it is proper to proceed to call the
roll of members, to the end, that each member as
his name is called, may advance and take the oath
of office. In the House of Representatives of the
United States, the oath of office is administered to
the speaker by a member of the House, (usually by
that one who has been longest a member,) and the
other members are sworn in by the speaker.
~ 513. Notwithstanding the fact that these rules
and regulations governing the organization of legislative bodies, are' well settled, and generally understood, it will sometimes occur that an organization
may not be effected without great delay and difficulty, and it has sometimes happened that two bodies
have organized and elected officers, being nearly
equal in point of numbers, and each claiming to be
the lawful organization. Nor has the lower House
of Congress always been able to organize without
delay or difficulty. In the twenty-sixth Congress,
the Clerk of the House undertook to omit from the
roll both the claimants for each of several contested
seats, and by this action the organization was delayed
for some ten days. In this he was clearly wrong,
for it was his duty to place upon the roll the names
of the persons holding proper certificates of election, without regard to the question whether the
seats of any such persons were to be contested. In
the thirty-first, thirty-fourth, and thirty-sixth Congresses, the organization of the House was delayed
by reason of the failure of a majority of the members to vote for any candidate for speaker, thus preventing an election. Delay from this cause may frequently occur, and cannot be prevented, so long as




OF LEGISLATIVE BODIES.        381
the votes of a majority of members are required to
elect a speaker. It was found necessary, in the 31st
and 34th Congresses, to adopt the plurality rule in the
election of a speaker, for the reason that the majority seemed altogether unable to agree upon any
person for that office. This was effected by a resolution of the House, authorizing an election of
speaker by a plurality, and afterwards by the passage of a confirmatory resolution, declaring him
"duly elected." (Barclay's Dig., 126.)
~ 514. In case of a division of a legislative body,
that ought to be a unit, it becomes important to determine which is the legal, and which the illegal assembly. In such a case the true test is this; that is
the legal organization which has "maintained the
regular forms of organization, according to the laws
and usages of the body, or in the absence of these,
according to the laws, customs and usages of similar
bodies in like cases, or in analogy to them." Kerr
vs. Trego, supra.)  This rule affords the best possible test of legitimate organization.
In all cases where part of a legislative body remains, and where the body is to be completed by
the reception of new members, the old members
who hold over remain as an organized nucleus,
which receives the new members, when the whole
body proceeds to the exercise of all its functions.
The new members, though they be in the majority,
must meet with the old at the time and place fixed
by law, and proceed regularly with the organization
of the body, and they cannot assemble elsewhere
and organize the body. They must join themselves
to the existing body, for the members holding over,




382        ORGANIZATION AND POWERS
though they may be in the minority, and not sufficiently numerous to constitute a quorum, are yet
the body, for the purposes of receiving the new
members and acting as the organs of re-organizing
the body. And this principle applies, and often becomes very important, in those cases where but a
single officer of the preceding body holds over, and
is authorized to take charge of the organization of
the new body. Thus, as we have seen, the Clerk of
the previous House of Representatives of the United States, is authorized, by law, to preside at the
organization of the new House, and he is, therefore,
(unless he be absent, or incapacitated, or the office
be vacant, in which cases the law provides a substitute,) the only person who can take charge of the
organization.  Even if a quorum of the House
should refuse to recognize him, and should choose
another to preside over the organization, that action
would be null and void.
It is apparent that this rule will, if adhered to, ensure a legal organization, and prevent a schism of
the body, in every case, though the process of organization may, in some cases, be tardy. It may be
urged that this rule puts too much power in the
hands of the person or persons who are empowered
to prepare a roll of members, and take charge of
the organization, but the answer is, that whatever
of inconvenience or hardships may result from this
rule, cannot be compared to the advantages of securing a regular and legal organization, and avoiding
the possibility of division, disorganization, and conflict. Besides, the majority can always, by legal and
orderly means, correct errors and redress wrongs,
if any are attempted upon their rights.




OF LEGISLATIVE BODIES.         383
~ 515. In the event that a municipal or legislative
body which ought to be a unit, divides into two separate bodies, each claiming to be the legitimate and
legal organization, what is the remedy by which the
authority of the lawful body may be maintained, and
the unlawful body be restrained from assuming and
attempting to exercise functions which do not belong'to it? In considering this question, we must keep'in view the fact that there are two classes of legislative bodies, to-wit: those which are supreme, and
those which are subordinate. To the former class
belong the Congress of the United States, and the
legislatures of the several States. These represent
the supreme legislative power of the nation and of
the State. To the latter class belong the common
-councils of cities and towns, and other similar municipal legislative bodies. These are under law, and
subordinate to the judgments and orders of the
courts of justice.
For a failure to organize a supreme legislature,
there is no remedy which courts of justice can ad-minister, and this fact makes it all the more important that the rules which have been established to prevent such failure, and avoid the anarchy, confusion,
and possible bloodshed, which might ensue, should
be adhered to. As to subordinate legislatures, such
as are not supreme, but subject to the jurisdiction of
the judiciary, it has been held that an illegal body'may be restrained by injunction, from acting. In
-the case of Kerr vs. Trego, supra, the Supreme'Court of Pennsylvania discussed the question of the
remedy for these evils, as follows:
"Have the Courts authority to redress this wrong?




384        ORGANIZATION AND POWERS
We think they have. All bodies, except the supreme legislature, are under law, and therefore, for
all transgressions of law are subject to the autnority
of the judicial power established by the constitution.
The corporation itself is subject to this authority, so
far as its acts are directed by law, though it is not,
and can not be so, in so far as it is itself a law making power; in so far as its judgment and direction
are uncontrolled by the law of the land, it is free
from  the control of the courts, but in so far as its
acts are directed by law, it is subject to the judicial
authority; much more then are its officers subject to
this authority, and especially those that pretend to'
act as its officers, without right, and as there cannot
be two common councils, one ofthese bodies must
be a mere pretender to the right to act as such.
May the wrongful party be restrained from acting
by the means of the equitable remedy of injunction?
We think it may; this remedy extends to all acts
that are contrary to law, and prejudicial to the interests of the community, and for which there is no adequate remedy at law; and we can hardly imagine
any act that more clearly falls within this description
than one that casts so deep a shade of doubt and
confusion on the public affairs of a city as this does.
In such a case no remedy is adequate that is not
prompt and speedy as this one. If a private partnership or corporation were to fall into similar confusion affecting all its members, and all its creditors,
we can think of no better remedy than this for staying the confusion that would be caused by two opposite parties pretending to act as the society. It is
the very remedy usually adopted when churches di



OF LEGISLATIVE BODIES.        385
vide into parties, and we have applied it in three
such cases in the last year; therein we decided directly on rights of property, because that became the
aim of dispute; here we must decide on the right
to publicfunctions, because that is here the purpose
of the dispute. The main question in all such cases
is regularity of organization, and the right to functions and property is a mere consequence of this.
May one of the conflicting bodies, or the members
of it, maintain this action against the other? We
think they may; this could not be doubted in relation
to private corporations and partnerships; but it is
argued that in relation to public corporations the
attorney general alone can file such a bill; we do not
think so; it is a right for those to whom public functions are entrusted, to see that they are not usurped
by others. Either of these bodies has the right to
demand of the courts that it, and all the interests of
the public alleged to be committed to it, shall be protected against the usurpation of the other. We decided a similar principle in Molf vs. The Railroad, 30
Penn., St. R., 9, and we need say no more about it
now. This case is, therefore, regularly before us,
and we proceed to the consideration of it, premising
that there is no material fact in dispute, and that we
have no authority to decide directly upon the validity of the election of any one of the claiming members."
~ 516. Inasmuch as Senators of the United States
are chosen in each State by the legislature thereof, it is
manifest that the Senate may sometimes find it- necessary to inquire and determine whether a body
claiming to be the legislature of a State is in fact
25




386        ORGANIZATION AND POWERS
such. If two bodies have organized, each claiming
to be the legislature, and each has elected a Senator,
of course the Senate, in order to decide-between
them, must inquire and determine which was the legislature. Such a case arose in Sykes vs. Spencer,
in the Senate of the United States, (forty-third Congress, first session, report number two hundred and
ninety-one.)  And in determining that case the Senate of the United States laid down a rule which may
at first appear to be, but which is not in reality, in
conflict with the doctrine we have been considering
in the preceding sections of this chapter. The contest between the two legislatures in this case depended upon this: In one body were eight or nine
members who had received regular certificates of
election, but who were conceded not to have been.elected, while in the other was found an equal number of persons duly elected, but without certificates,of election. To make a quorum of the former body,
it was necessary to count the persons holding cer-,tificates, but not elected, and to make a quorum of
the latter, it was necessary to count the members
duly elected, but without certificates. The former
body was called the State house legislature, while
the latter was called the court house legislature.
The Senate held that the body having a quorum of
members in fact duly elected, should be regarded as
the legislature of the State, for the purpose of electing the Senator in Congress, and the grounds of
this decision are thus stated in the committees' report, submitted by,Senator Carpenter of Wisconsin:
"The matter, then, comes to this: The State
house legislature was the legislature in form, and




OF LEGISLATIVE BODIES.        387
the court house legislature was the legislature in fact.
While these two pretended legislatures were in existence, each claiming to possess the legislative power of the State, Spencer was elected to the Senate
by the court house legislature, and Sykes was elected by the State house legislature. Spencer was
first elected,, and on the day of his election the court
house legislature was recognized by the governor as
the legal legislature of the State. Therefore, in determining as to. the right of Spencer or Sykes to this
seat, the Senate is compelled to choose between the
body in fact elected, organized, acting, and recognized by the executive department as the legislature,
and another body, organized in form, but without the
election and without a recognition on the part of the
executive of the State at the time they pretended to
elect Sykes. When we consider that all the forms
prescribed by law for canvassing and certifying an
election, and for the organization of the two houses,
are designed to secure to the persons actually elected the right to act in the offices to which in fact they
have been elected, it would be sacrificing the end to
the'means, were the Senate to adhere to the mere
form, and thus defeat the end which the forms were
intended to secure.
The persons in the two bodies claiming to be the
Senate and House of Representatives who voted for
Spencer, constituted a quorum of both Houses of
the members actually elected;' the persons in the
State House legislature who voted for Sykes did not
constitute a quorum of the two Houses duly elected,
but a quorum  of persons certified to have been
elected to the two Houses. Were the Senate to




388       ORGANIZATION AND POWERS
hold Sykes' election to be valid, it would follow that
erroneous certificates, delivered to men conceded not.
to be elected, had enabled persons who in fact ought
not to vote for a Senator to elect a Senator to misrepresent the State for six years. On the other
hand, if we treat the court house legislature as the.
legal legislature of the State, it is conceded that we
give effect to the will of the people as evidenced by
the election. So that, to state the proposition in
other words, we are called upon to choose between
the form and the substance, the fiction and the fact;
and, considering the importance of the election of
a Senator, in the opinion of your committee the Senate would not be justified in overriding the will of
the people, as expressed by the ballot-box, out of
deference to certificates issued erroneously to persons who were not elected.
In the opinion of your committee it is not competent for the Senate to inquire as to the right of individual members to sit in a legislature which is conceded to have a quorum in both houses of legally
elected members. But, undoubtedly, the Senate
must always inquire whether the body which pretended to elect a Senator was the legislature of the
State or not; because a Senator can only be elected
by the legislature of a State. In this case, Spencer
having been seated by the Senate, and being prima
facie entitled to hold the seat, the Senate cannot oust
him without going into an inquiry in regard to the
right of the individual persons who claim to constitute the quorum in these respective bodies at the
Court House and at the State House. We cannot
oust Spencer from his seat without inquiring and de



OF LEGISLATIVE BODIES.       389
termining that the eight or nine individuals who were
elected were not entitled to sit in the legislature of
the State, because they lacked the certificates. But
if the Senate can inquire into this question at all, it
must certainly inquire for the fact rather than the
evidence of the fact. It cannot be maintained that
when the Senate has been compelled to enter upon
such an examination it is estopped by mere prima
facie evidence of the fact, and the certificate is conceded to be nothing more than primafacie evidence.
But the Senate must go back of that to the fact
itself, and determine whether the persons claiming
to hold seats were in fact elected. When we do this
we come to the conceded fact that these persons,
lacking the certificate, had in fact been elected, and
that the persons whoclaimed to be a quorum of the
two houses were in fact the persons who, in virtue'of the election, were entitled to constitute the
quorum of both houses."
~ 517. The case here decided was without an exact precedent in the history of contested seats in
the United States Senate. It was, of course, insisted
in opposition to the doctrine of the report that the
Senate was bound to recognize as the legislature of
Alabama, that body which consisted of a quorum of
members holding the usual primafacie evidence of
election thereto. But the answer to this was that
the Senate may in such a case as this, inquire into
the question who infact composed the legislature,:and shall not be concluded by the prima facie evidence by which a legislative body in organizing itself,'
ought to be bound. There was an important fact in
the case, of which we are speaking, which must not




390        ORGANIZATION AND POWERS
be overlooked. The two bodies did not remain separated, but came together, and after uniting and
forming a legislature, about the legality of which
there was no question, they adjudicated the question concerning the several contested seats in favor
of the persons who sat in the court house body,
which elected Mr. Spencer. So that the legislature
of Alabama itself'having adjudicated this question,
it become in the Senate of the United States simply
a question whether effect should be given to the
votes of persons who had in fact no right to vote.
This precedent should not be extended beyond the
case decided, and therefore all the facts should be
kept in view.  It is believed that the case was well
decided upon the following rule, which may be safely
followed as a precedent, to-wit:
Where a State legislature, which ought to be a
unit, is divided into two bodies, one of which is composed of a majority of the members elected, but
not of a majority'of the members returned, if this
body assumes to be the legislature, and as such
elects a Senator in Congress, and if afterwards the
two bodies unite, the validity of such election of
Senator will depend, not upon the question whether
the persons composing that body were primafacie
entitled to the office, but upon the question whether
they were in fact so entitled. Whether this rule
would apply where the two bodies remained permanently separated, was not decided, for the question
did not arise. That it should apply to a case like
the one under consideration, is manifest from the
consideration that to adopt the opposite rule would
be in effect to say that a minority of the members




OF LEGISLATIVE BODIES.       391
elected, the consolidated legislature being itself the
judge as to who was and who was not elected, shall
be held to have composed the legislature.
This would be to put the form above the substance,
and to sacrifice the real merits out of regard.to
the first appearances, and regardless of the fact that
the primafacie evidence of title to seats, upon which
alone such a decision could be based, has been set
aside and overcome by subsequent proof.
But it may be said that the six persons holding
certificates, but not elected, should have been regarded as members of the legislature defacto, and
their acts as such held valid until they were unseated
by a contest.  Here again is a misapplication of a
well settled rule.
The election of a Senator in Congress is not in
the nature of an ordinary legislative act; it is an
election, and not the enactment of a law. Of the validity and bona fides of such an election the Senate
of the United States is the sole and exclusive judge.
The cases in which the official acts or votes of
members of a legislative body who are such defacto
only, and not de jure, have been held valid, are all
cases in which there was no question as to the legality
of the body in which they sat.  They are cases in
which the body admitting such persons was, in doing
so, acting within its admitted jurisdiction, and in such
cases the courts will not inquire into the title of such
members to their seats. The courts, in such cases,
will go no further than to inquire as to the legal
status and authority of the* body as a- whole, but
where there are two bodies, each claiming to be the'legislature, then the Court, whose duty it is to re



392        ORGANIZATION AND POWERS
spect and execute the acts of such legislature, must
of necessity decide which is the legislature.
~ 518. From these considerations it is apparent
that the case of Sykes vs. Spencer, is not in conflict
with the rule that in the organization of legislative
bodies, persons holding the usual credentials are
alone authorized to act; nor is it in conflict with the
general doctrine that the acts of a member of a legislative body who is such defacto only, are valid. It
goes no further than to hold that the particular election in question, though perhaps irregular, was not
void; that it was by the action of the consolidated
and legal legislature, shown to have been an election by the quorum of members duly elected to the
legislature; and that the Senate of the United States
acting as sole judge of said election, might with propriety admit to a seat the person chosen at said election.
~ 519. A legislative body has power to preserve
order and decorum, enforce its rules, and prevent or
punish any breach of decorum or of the privileges
of the body or of any of its members. Mr. Cushing
in his manual of parliamentary practice, in speaking of the rights and duties of members of a deliberative assembly says: "The only punishments which
can be inflicted upon its members by a deliberative
assembly of the kind now under consideration consist of reprimanding, exclusion from the assembly,
a prohibition to speak or vote for a specified time,
and expulsion; to which are to be added such other
forms of punishment as by apology, begging pardon,
&c., as the assembly may see fit to impose, and to
require the offender to submit on pain of expulsion."
(Cushing's Manual, chap. 3.)




OF LEGISLATIVE BODIES.       393
~ 520. A member may be accused or complained
of by any other member, or by the presiding officer,
and it is the duty of the latter to make such complaint to the House, in case any member is guilty of
irregular and disorderly deportment in the course of
the sessions of the body. When a complaint of
this kind is made, the offender is named, that is the
announcement is made to the assembly, that such a
member, calling him by name, is guilty of certain
irregular and improper conduct.  The accused
member may be heard in his defense, and after being heard, must withdraw, while the body deliberates
upon the case, unless the assembly resolve to allow
him to remain. He must not, however, in any case,
be allowed to vote on his own case, "it being," says
Mr. Cushing, " contrary not only to the laws of decency, but to the fundamental principles of the social
compact, that a man should sit and act as a judge
in his own case."
~ 521. The power of the two Houses of Congress
over their members is derived from Art. 1, Sec. 5, of
the constitution, which provides: "Each House may
determine the rules of its proceedings; punish its
members for disorderly behavior, and with the concurrence of two-thirds, expel a member."  The
question has been much discussed, whether a member may be punished or expelled for an act or acts
*done prior to his election. The question seems first
to have arisen in the case of Senator Marshall, of
Kentucky.  (1804.)  The Senate in that case refused to take jurisdiction, for the reason, among others, that the alleged offense had been committed
prior to the Senators election, and was matter cog



394       ORGANIZATION AND POWERS
nizable by the criminal courts of Kentucky. But
the doctrine of this case was antagonized by the report submitted to the Senate by John Quincy Adams,
in December, 1807, in the case of Senator John
Smith, of Ohio, who, after his election, but not during the session of the Senate, had been, as was alleged, involved in the treasonable conspiracy of
Aaron Burr. In this latter case it was held that the
power to expel should be used as a means of relieving the body of the presence of corrupt or infamous persons. The report says:
"The power of expelling a member for misconduct results, on the principles of common sense,,
from the interests of the nation that the high trusts
of legislation shall be invested in pure hands. When
the trust is elective, it is not to be presumed that the
constituent body will commit the deposit to the keeping of worthless characters. But when a man whom
his fellow citizens have honored with their confidence
on a pledge of a spotless reputation, has degraded
himself by the commission of infamous crimes,; which
become suddenly and unexpectedly revealed to the
world, defective indeed would be that institution
which should be impotent to discard from its bosom
the contagion of such a member; which should have
no remedy of amputation to apply until the poison
had reached the heart."
-~ 522. The question was again raised in the case of
Matfeson in /te 35/h Congress. The charges against
Mr. Matteson had been preferred in the previous
Congress, and a committee of investigation had reported against him, recommending his expulsion.
Pending these resolutions he had resigned, having,




OF LEGISLATIVE BODIES.       395
however, at the time of his resignation been reelected. When he took his seat in the new Congress by virtue of such re-election, the charges
were renewed. A majority of the' committee reported adversely to the jurisdiction of the House,
In the Report, as well as in the debate, the want
of jurisdiction was based upon various grounds,
and among them, upon the ground that the offense
was committed prior to the election of the accused
member. After a long debate the whole subject
was laid upon the table, so that it cannot be said
that the question was authoritatively determined,
one way or the other. Thus the question stood,
when the whole controversy came up anew upon the
report of the special committee to investigate the
alleged Credit Mobilier bribery, This investigation
took place in the forty-second Congress, and related
chiefly.to transactions of members of the fortieth
Congress. The report of this case discussed'the
question at length, and concludes that the power to
expel is not limited to those cases where the accused
has been guilty of misconduct as a member, and
subsequent to his election. From this report we
quote as follows:
I"It is universally conceded, we believe, that the
House has ample jurisdiction to punish or expel a.
member for an offense committed during his term as.
a member, though committed during a vacation of
Congress and in no way connected with his duties
as a member. Upon what principle is it that such a
jurisdiction can be maintained? It must be upon
one or both of the following: that the offense shows
him to be an unworthy and improper man to be a.




396        ORGANIZATION AND POWERS
member, or that his conduct brings odium and reproach upon the body. But suppose the offense has
been committed prior to his election, but comes to
light afterward, is the effect upon his own character,
or the reproach and disgrace upon the body, if they
allow him to remain a member, any the less? We
can see no difference in principal in the two cases,
and to attempt any would be to create a purely
technical and arbitrary distinction, having no just
foundation. In our judgment, the time is not at all
material, except it be coupled with the further fact
that he was re-elected with a knowledge on the part
of his constituents of what he had been guilty, and
in such event we have given our views of the effect.
"It seems to us absurd to say that an election has:given a man political absolution for an offense which
was unknown to his constituents. If it be urged
again, as it has sometimes been, that this view of the
power of the House, and the true ground'of its
proper exercise, may be laid hold of and uged improperly, it may be answered that no rule, however
narrow and limited, that may be adopted, can prevent'it. If two-thirds of the House shall see fit to expel
-a man because they do not like his political or religious principles, or without any reason at all, they
have the power, and there is no remedy except by
appeal to the people. Such exercise of the power
would be wrongful, and violative of the principles of
the Constitution, but we see no encouragement of
such wrong in the views we hold.
"It is the duty of each House to exercise its rightful functions upon appropriate occasions, and to trust
-that those who come after them will be no less faith



OF LEGISLATIVE BODIES.         397
ful to duty, and no less jealous for the rights of free
popular representation than themselves. It will be
quite time enough to square other cases with right
reason and principle, when they arise. Perhaps the
best way to prevent them, will be to maintain strictly
public integrity and public honor in all cases as they
present themselves. Nor do we imagine that the
people of the United States will charge their servants with invading their privileges, when they confine themselves to the preservation of a standard of
official integrity which the common instincts of humanity recognize as essential to all social order and
good government."
~ 523. Precisely the opposite doctrine was, however, maintained in a report made to the House,
from the committee on the judiciary, by Mr. Butler,
of Mass., and which was submitted within a few days
after that of the Credit Mobilier investigating committee just quoted from. (Cong. Globe, Third Session, 42d. Congress, part 3, page 1651.)  The question now under consideration, entered very largely
into the debate upon the report of the Credit Mobilier investigating committee, and at the close of
that debate Mr. Sargeant of California offered a
substitute for the pending resolutions, which substitute proposed to change the punishment of the accused members from expulsion, to condemnation
and censure. This substitute consisted of two resolutions, and the following preamble:
"Whereas, by the report of the special committee herein, it appears that the acts charged as offenses against members of this House, in connection
with the Credit Mobilier of America, occurred more




898        ORGANIZATION AND POWERS
than five years ago, and long before the election of
such persons to this Congress, two elections by the
people having intervened, and whereas grave doubts
exist as to the rightful exercise by this House of its
power to expel a member for offenses committed by
such member long before his election thereto, and
not connected with such election. Therefore," &c.
The resolutions of condemnation and censure, following this preamble, were first voted upon and
were adopted by the House. A separate vote was
then taken on the adoption of the preamble, and it
was lost by a vote of ninety-eight yeas to one hundred and thirteen nays. (See Globe, third session,
42d Congress, pages 1830 to 1835.) Thus the House
decided to sustain the doctrine contended for by the
special committee, and against the doctrine laid'
down in the above mentioned report from the committee on the judiciary. It may, therefore, be said
that the House has fairly decided the question, and
has held that a member may be expelled or punished for offenses committed prior to his election, especially if those offenses were unknown to his constituents at the time of his election. It will of
course occur to every one that this is a power which
should be exercised with great circumspection, and
moderation, and with a due regard to the rights
both of constituencies and of individual members of
Congress.
~ 524. It is very clear that either House of Congress possesses the power to punish for contempt of
its authority. In this respect and for this purpose
each House is acourt, and exercises judicial functions.
The power to punish for contempt.of course includes




OF LEGISLATIVE BODIES.        399
the power to hold in confinement a person summoned:as a witness in the course of an investigation before
either House, or before a committee thereof, and:
who refuses to answer proper questions put to him,
by the House or by the committee under the order,of the House. IThis latter is not strictly punishment
for the contempt, because in such a case the recusant'witness may release himself from confinement by:answering, but it is a necessary and proper exercise,of the authority of the House to compel the disclosure of all facts within the knowledge of any witness which affect the order, the dignity, or the purity
of its legislation. These general rules are well settled by the authorities.  (Cooley on Constitutional
Limitations, 133. Anderson vs. Dunn, 6 Wheat, 14
East, 1. Slockdale vs. Hansard, 9. Adoiphus and
Ellis, 231. Burnham vs. Morrisey, 14 Gray, 226.
State vs. Mathews, 37 N. HT., 450. Case of Irwin,
43d Congress. Case of Walcott, 35th Congress.)
~ 525. An examination of these and other authorities upon the subject, will show that not alone the
two Houses of Congress, but our legislative bodies
generally, possess the power to protect themselves'by punishing for contempt, and by expulsion of a
member. This is a power inherent in every legislative body. The power to punish contempts of its
authority which belongs to legislative bodies in general, is not limited to the punishment of members,
but reaches other persons, and it belongs to each
House of our State legislatures, whether expressly
conferred by constitutional provision or not. Where,
however, imprisonment is imposed by a legislative
body as a punishment for contempt, or as a means
of compelling disclosures by a witness, it must ter



400        ORGANIZATION AND POWERS
minate with the final adjournment of the House, and
if the prisoner be not then discharged by its order,
he may be released on habeas corpus. (7efferson's
Manuel, ~ 18.  Cooley on Constitutional Limitations,
134.)
~ 526. An act of Congress of 24th January, 1857,
provides for the punishment by fine, and the imprisonment of any person who having been summoned as a witness by the authority of either
House of Congress, shall wilfully make default or
who having appeared shall refuse to answer any
question pertinent to the question under inquiry.
The said act further provides in the last section thereof as follows:
"That when a witness shall fail to testify as provided in the previous sections of this act, and the
fact shall be reported to the House, it shall be the
duty of the Speaker of the House or the President
of the Senate to certify the fact, under the seal of'
the House or Senate, to the district attorney for the
District of Columbia, whose duty it shall be to bring
the matter before the grand jury for their action."
(Revised Statules, U. S., page 17.)
Under this statute it has been claimed that the
Houses of Congress are deprived of the power toc
punish for contempt and that they have authorityonly to report a case of contempt to the proper district attorney to be laid before the grand jury. But:
this is an erroneous view of the effect of the statutes
Because a contempt of the authority of the House:
is made by statute a misdemeanor, it does not thereby cease to be a contempt. The power of the House:
or Senate to punish ceases with its final adjourn-.
ment, and the punishment which it may inflict is.




OF LEGISLATIVE BODIES.        401
therefore often very inadequate. If the offense is
committed near the close of a Congress, the utmost
that either House can do, may be to confine the offender for a few days or possibly only for a few hours.
It was for this reason, doubtless, that Congress provided by the statute above named a more effective
remedy by indictment. This view of the statute was
sustained by the criminal court of the District of Columbia in the case of R. B. Irwin, decided by judge
McArthur, January, 1875. The House of Representatives having committed Irwin to the common
jail of the District of Columbia for comtempt, in refusing to answer proper questions put to him in the
course of an investigation, he applied to said court
for release upon habeas corpus, and his counsel
urged, as one ground for his discharge from imprisonment, that under the statute above mentioned, the
House had no power to commit him, its authority
over him having been exhausted by a certification
of the facts to the district attorney. The court
overruled this point and in the course of his opinion
the judge used this language:
"It is said that in as much as Congress has created the act of a witness refusing to answer a misdemeanor, they have abolished it as to contempt. I
can not so regard it. It appears to me that the punishment provided in the statute for this as an offense
does not merge the contempt, and does not abolish
the power of the House. It appears to me that it
has not been so understood from the time of the enactment of the statute; and I believe this is the first
time that that aspect of the case has ever been presented for judicial examination. There is nothing
clearer than that the same act may be both a misde26




402       ORGANIZATION: AND POWERS.
meanor and a contempt. If one member should
strike another while the House was in session, and
in its presence, it would be a contempt of the House,
and a misdemeanor under the law, for which he
could be punished. It would be no answer to the
proceedings in the House for contempt to say that
he was liable under the general law of the land, to
be punished for the misdemeanor."
~ 527. The power to punish persons not members of the body for contempt, is not conferred upon
the Houses of Congress by any express provision
of the constitution, but in Anderson vs. Dunn, sufra,
in which the whole subject is exhaustively discussed,
it is held that the Houses respectively possess this
power, and that it is conferred by necessary implication, under the constitution, growing out of the
power to legislate, and to make and enforce rules.
It was there declared to be a power essential to enable the Houses of Congress to discharge the duties, and exercise the powers which the people have
entrusted to them.
~ 528. The power given to each House of Congress to "judge of the election returns and qualifications of its own members," does not authorize an inquiry into the moral character of a person elected and
returned as a member. Such an inquiry can only be
made, if at all, in the prosecution of proceedings for
expulsion. The term "qualifications," as used in the
constitution, means the constitutional qualifications,
to-wit: that the person elected shall have attained the
age of twenty-five years, been seven years a citizen
of the U. S., and shall be an inhabitant of the State in
which he shall be chosen. (Maxwell vs. Cannon,
43 d Congress.)




LAWS OF T\HE UNITED STATES
IN RELATION TO
THE ELECTIVE FRANCHISE.
ELECTION OF SENATORS.
ELECTION OF REPRESENTATIVES.
ORGANIZATION OF MEETINGS OF CONGRESS.
CONTESTED ELECTIONS.
PRESIDENTIAL ELECTIONS.
ALSO-A DISCUSSION OF THE QUESTION OF RESIDENCE AS A QUALIFICATION FOR VOTING, BEING
PART OF REPORT OF THE COMMITTEE OF ELECTIONS IN THE HOUSE OF REPRESENTATIVES, U. S.,
IN ~CASE OF CESSNA ZVS. MYERS.








THE ELECTIVE FRANCHISE.
(FROM THE REVISED STATUTES.):Sec. 2002. Bringing armed troops to places of election.
2003. Interference with freedom of elections by officers of army
or navy.
2004. Race, color, or previous condition, not to affect the right
to vote.
" 2005. Nor the performance of any pre-requisite.
"   2006. Penalty for refusing to give full effect to preceding section.
~'  2007. What shall entitle a person to vote.'. 2008. Penalty for wrongfully refusing to receive a vote.
"~  2009. For unlawfully hindering a person from voting.: 2010. Remedy for deprivation of office.
"   201 I. In cities or towns of over 20,000 inhabitants, upon written
application of two citizens, the circuit judge to open
court.
201I2. Supervisors of election.
"   20I3. Court to be kept open.:i  2014. District judge may perform duties of circuit judge.
"   2015. Construction of preceding section.
" 20I6. Duties of supervisors of elections.
" 2017. Attendance at elections.
"   2018. To personally scrutinize and count each ballot.
" 20 I9. Their positions.
" 2020. When molested.
" 2021. Special deputies.
"'  2022. Duties of marshals.
"   2023. Persons arrested to be taken forthwith before a judge.
"   2024. Assistance of bystanders.
"'  2.025. Chief supervisors of elections.
"   2026. Their duties.
"'   2027. Marshals to forward complaint to chief supervisors.
a   2028. Supervisors and deputy marshals to be qualified voters, &c.
"   2029. Certain supervisors not to make arrests, &c.'"  2030. No more marshals or deputy marshals to be appointed
than now authorized.
4'  2031. Pay of supervisors, &c,
405




406      APPENDIX.-THE  ELECTIVE  FRANCHISE.
SEC. 2002. No military or naval officer, or other person engaged in.
the civil, military, or naval service of the United States, shall order,.
bring, keep, or have under his authority or control, any troops or armedmen at the place where' any general or special election is held in any
State, unless it be necessary to repel the armed enemies of the United&
States, or to keep the peace at the polls.
SEC. 2003. No officer of the Army or Navy of the United States..
shall prescribe or fix, or attempt to prescribe or fix, by proclamation,
order, or otherwise, the qualifications of voters in any State, or in any
manner interfere with the freedom of any election in any State, or with.
the exercise of the free right of suffrage in any State.
SEC. 2004. All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory.
district, county, city, parish, township, school district, municipality, or
other territorial subdivision, shall be entitled and allowed to vote at all
such elections, without distinction of race, color, or previous condition
of servitude; any constitution, law, custom, usage, or regulation of any
State or territory, or by or under its authority, to the contrary notwithstanding.
SEC. 2005. When, under the authority of the constitution or laws of
any State, or the laws of any Territory, any act is required to be done
as a prerequisite or qualification for voting, and by such constitution or
laws persons or officers are charged with the duty of furnishing to citizens an opportunity to perform such prerequisite, or to become qualified to vote, every such person and officer shall give to all citizens of
the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote.
SEC. 2006. Every person or. officer charged with the duty specified in
the preceding section, who refuses or knowingly omits to give full
effect to that section, shall forfeit the sum of five hundred dollars to the
party aggrieved by such refusal or omission, to be recovered by an action on the case, with costs, and such allowance for counsel fees as the
court may deem just.
SEC. 2007. Whenever under the authority of the constitution or laws.
of any State, or the laws of any Territory, any act is required to be
done by a citizen as a prerequisite to qualify or entitle him to vote, theoffer of such citizen to perform the act required to be done shall, if it
fail to be carried into execution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon, bedeemed and held as a performance in law of such act; and the person so.
offering and failing to vote, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had infact performed such act.
SEC. 2008. Every judge, inspector, or other officer of election whoseduty it is to receive, count, certify, register, report, or give effect to the:
vote of such citizen, who wrongfully refuses or omits to receive, count,,




APPENDIX.-THE  ELECTIVE  FRANCHISE.    407
certify, register, report, or give effect to the vote of such citizen upon
the presentation by him of his affidavit, stating such offer and the time
and place thereof, and the name of the officer or person whose duty it
was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall forfeit the sum of five
hundred dollars to the party aggrieved by such, refusal or omission, to
be recovered by an action on the case, with costs, and such allowance
for counsel fees as the court may deem just.
SEC. 2009. Every 9fficer or other person, having powers or duties of
an official character to discharge under any of the provisions of this
Title, who by threats, or any unlawful means, hinders, delays, prevents,
or obstructs, or combines and confederates with others to hinder, delay,
prevent, or obstruct any citizen from doing any act required to be done
to qualify him to vote, or from voting at any election in any State,
Territory, district, county, city, parish, township, school district, municipality, or other territorial, subdivision, shall forfeit the sum of five
hundred dollars to the person aggrieved thereby, to be recovered by an
action on the case, with costs, and such allowance for counsel fees as the
court may deem just.
SEC,. 20Io. Whenever any person is defeated or deprived of his election to any office, except elector of President or Vice-President, Representative or Delegate- in Congress, or a member of a State legislature,
by reason of the denial to any citizen who may offer to vote, of the right
to vote, on account of race, color, or previous condition of servitude, his,
right to hold and enjoy such office, and the emoluments thereof, shall not
be impaired bysuch denial; and the person so defeated or deprived may
bring any appropriate suit or proceeding to recover possession of such
office, and in cases where it. appears that the sole question touching the
title to such office arises out of the denial of the right to vote to citizens
who so offered to vote, on account of race, color, or previous condition
of servitude, such suit or proceeding may be instituted in the circuit or
district court of the U. S. of the circuit or district in which such person
resides. And the circuit or district court shall have, concurrently with
the State courts, jurisdiction thereof, so far as to determine the rights
of the parties to such office by reason of the denial of the right guaran'teed by the fifteenth article of the amendment to the Constitution of the
United States, and secured herein.
SEC. 20I'I. Whenever, in any city or town, having upward of twenty
thousand inhabitants, there are two citizens thereof, or whenever, in
any county or parish, in any congressional district, there are ten citizens.
thereof, of good standing, who, prior to any registration of voters foran election for Representative or Delegate in the Congress of the United States, or prior to any election at which a Representative or Delegate in Congress is to be voted for, may make known, in writing, to the
judge of the circuit court of the United States, for the circuit wherein
such city or town, county or parish, is situated, their desire to have such




408    APPENDIX.-THE  ELECTIVE FRANCHISE.
registration, or such election, or both, guarded and scrutinized, the judge,
within not less than ten days prior to the registration, if one there be,
or, if no registration be required, within not less than ten days prior to
the election, shall open the circuit court at the most convenient point in
the circuit.
SEC. 2012. The court, when so opened by the judge, shall proceed to
appoint and commission, from day to day, and from time to time, and
under the hand of the judge, and under the seal of the court, for each
election district or voting precinct in such city or town, or for such
election district or voting precinct in the congressional district, as may
have applied in the manner hereinbefore prescribed, and to revoke,
change, or renew such appointment from time to time, two citizens, residents of the city or town, or of the election district or voting precinct
in the county or parish, who shall be of different political parties, and
able to read and write the English language, and who shall be known
and designated as supervisors of election.
SEC. 2013. The circuit court, when opened by the judge as required
in the two preceding sections, shall therefrom and thereafter, and up to
and including the day following the day of election, be always open for
the transaction of business under this Title, and the powers and jurisdiction hereby granted and conferred shall be exercised as well in vacation as in term time; and a judge sitting at chambers shall have the
same powers and jurisdiction, including the power of keeping order and
of punishing any contempt of his authority, as when sitting in court.
SEC. 20o4. Whenever, from any cause, the judge of the circuit court
in any judicial circuit is unable to perform and discharge the duties
herein imposed, he is required to select and assign to the performance
thereof, in his place, such one of the judges of the district courts within his circuit as he may deem best; and upon such selection and assignment being made, the district judge so designated shall perform and
discharge, in the place of the circuit judge, all the duties, powers, and
obligations imposed and conferred upon the circuit judge, by the provisions hereof.
SEC. 2015. The preceding section shall be construed to authorize each
of the judges of the circuit courts of the United States to designate
one or more of the judges of the district courts within his circuit to
discharge the duties arising under this Title.
SEC. 20I6. The supervisors of election, so appointed, are authorized
and required to attend at all times and places fixed for the registration
of voters, who, being registered, would be entitled to vote for a Representative or Delegate in Congress, and to challenge any person offering
to register; to attend at all times and places when the names of registered voters may be marked for challenge, and to cause such names
registered as they may deem proper to be so marked; to make, when required, the lists, or either of them, provided for in section two thousand
and twenty-six, and verify the same; and upon any occasion, and at any
time when in attendance upon the duty herein prescribed, to personally




APPENDIX.  THE  ELECTIVE  FRANCHISE.    409
inspect and scrutinize such registry, and for purposes of identification
to affix their signature to each page of the original list, and of each copy
of any such list of registered voters, at such times, upon each day when
any name may be received, entered, or registered, and in such manner
as will, in their judgment, detect and expose the improper or wrongful
removal therefrom, or addition thereto, of any name.
SEC. 2oI7. The supervisors of election are authorized and required
to attend at all times and places for holding elections of Representatives
or Delegates in Congress, and for counting the votes cast at such elections; to challenge any vote offered by any person whose legal qualifications the supervisors, or either of them, may doubt; to be and remain
where the ballot-boxes are kept at all times after the polls are open until every vote cast at such time and place has been counted, the canvass
of all votes polled wholly completed, and the proper and requisite certificates or returns made, whether the certificates or returns be required
under any law of the United States, or any State, territorial, or municipal law, and to personally inspect and scrutinize, from time to time, and
at all times, on the day of election, the manner in which the voting is
done, and the way and method in which the poll-books, registry-lists,
and tallies or check-books, whether the same are required by any law
of the United States, or any State, territorial, or municipal law, are
kept.
SEC. 2oi8. To the end that each candidate for the office of Representative or Delegate in Congress may obtain the benefit of every vote for
him cast, the supervisors of election are, and each, of them is, required
to personally scrutinize, count, and canvass each ballot in their election
district or voting precinct cast, whatever may be the indorsement on the
ballot, or in whatever box it may have been placed or be found; to make
and forward to the officer who, in accordance with the provisions of
section two thousand and twenty-five, has been designated as the chiet
supervisor of the judicial district in which the city or town, wherein
they may serve, acts, such certificates and returns of all such ballots as
such officer may direct and require, and to attach to the registry list,
and any and all copies thereof, and to any certificate, statement, or return, whether the same, or any part or portion thereof, be required by
any law of the United States, or of any State, territorial, or municipal
law, any statement touching the truth or accuracy of the registry, or
the truth or fairness of the election and canvass, which the supervisors
of the election, or either of them, may desire to make or attach, or
which should properly and honestly be made or attached, in order that
the facts may become known,
SEC. 20I9. The better to enable the supervisors of elections to discharge their duties, they are authorized and directed, in their respective
election districts or voting precincts, on the day of registration, on the
day when registered voters may be marked to be challenged, and on the
day of election, to take, occupy, and remain in such position, from time
to time, whether before or behind the ballot-boxes, as will, in their judg



410       APPENDIX.-THE  ELECTIVE  FRANCHISE.
ment, best enable them to see each person offering himself for registra-.
tion or offering to vote, and, as will best conduce to their scrutinizing
the manner in which the registration or voting is being conducted; and'
at the closing of the polls for the reception of votes, they are required
to place themselves in such position, in relation to the ballot-boxes, for
the purpose of engaging in the work of canvassing the ballots, as will.
enable them to fully perform the duties in respect to such canvass provided herein, and shall there remain until every duty in respect to such.
canvass, certificates, returns, and statements has been wholly completed.
SEC. 2020. When in any election district or voting precinct in any
city or town, for which there have been appointed supervisors of elec —
tion for any election at which a Representative. or Delegate in Congress.
is voted for, the supervisors of election are not allowed to exercise and
discharge, fully and freely, and without bribery, solicitation, interference, hinderance, molestation, violence, or threats thereof, on the part:
of any person, all the duties, obligations, and powers conferred upon
them by law, the supervisors of election shall make prompt report, under oath, within ten days after the day of election to the officer who, in
accordance with the provisions of section two thousand and twenty-five,,
has been designated as the chief supervisor of the judicial district in
which the city or town wherein they served, acts, of the manner and.
means by which they were not so allowed to fully and freely exercise
and discharge the duties and obligations required and imposed herein..
And upon receiving any such report, the chief supervisor, acting both.
in such capacity and officially as a commissioner of the circuit court,.
shall forthwith examine into all the facts; and he shall have power to
subpoena and compel the.attendance before him of any witness, and to.
administer oaths and take testimony in respect to the charges made;
and, prior to the assembling of the Congress for which any such Representative or Delegate was voted for, he shall file with the Clel;k of the
House of Representatives, all the evidence by him taken, all information by him obtained, and all reports to him made.
SEC. 202I,- Whenever an election at which Representatives or Delegates in Congress are to be chosen is held in any city or town of twenty
thousand inhabitants or upward, the marshal for the district in which
the city or town is situated shall, on the application, in writing, of at
least two citizens residing in such city or town, appoint deputy special
marshals, whose duty it shall be, when required thereto, to aid and assist:
the supervisors of election in the verification of any list of persons who.
may have registered or voted; to attend in each election district or voting
precinct at the time and places fixed for the registration of voters, and
at all times and places when and where the registration may by law be
scrutinized, and the names of registered voters be marked for challenge;:
and also to attend, at all times for holding elections, the polls in such
district or precinct.
SEC. 2022. The marshal and his general deputies, and such special
deputies, shall keep the peace, and support and protect the supervisors.




APPENDIX.-THE  ELECTIVE  FRANCHISE.                   411
of election in the discharge of their duties, preserve order at such places of registration and at such polls, prevent fraudulent registration and
fraudulent voting thereat, or fraudulent conduct on the part of any officer of election, and immediately, either at the place of registration or
polling place, or elsewhere, and either before or after registering or voting, to arrest and take into custody, with or without process, any person
who commits, or attempts or offers to commit, any of the acts or offenses prohibited herein, or who commits any offense against the laws of
the United States; but no person shall be arrested without process for
any offense not.committed in the presence of the marshal or his general
or special deputies, or either of them, or of the supervisors of election,.
or either of them, and, for the purpose of arrest, or the preservation of
the peace, the supervisors of election shall, in the absence of the marshal's deputies, or if required to assist such deputies, have the same du-.
ties and powers as deputy marshals; nor shall any person, on the day of
such election, be arrested without process for any offense committed on
the day of registration.
SEC. 2023. Whenever any arrest is made under any provision of this.
title, the person so arrested shall forthwith be brought before a com —
missioner, judge, or court of the United States for examination of the.
offenses alleged against him; and such commissioner, judge, or court.
shall proceed in respect thereto, as authorized by law in case of crimes.
against the United States.
SEC. 2024. The marshal or his gener;al deputies, or such special dep-.
uties as are thereto specially empowered by him, in writing, and under
his hand and seal, whenever he or either or any of them, is forcibly resisted in executing their duties under this title, or shall, by violence,
threats, or menaces, be prevented from executing such duties, or from
arresting any person who has committed any offense for which the
marshal or his general or his special deputies are authorized to make
such arrest, are, and each of them is, empowered to summon and call to.
his aid the bystanders or fosse comitalus of his district.
SEC. 2025. The circuit courts of the United States for each judicial
circuit shall name and appoint, on or before the first day of May, in the
year eighteen hundred and seventy-one, and thereafter as vacancies may
from  any cause arise, from among the circuit court commissioners for
each judicial district in each judicial circuit, one of such officers, who.
shall be known for the duties required of him under this title, as the
chief supervisors' of elections of the judicial district for which he is a
commissioner, and shall, so long as faithful and capable, discharge theduties in this title imposed.
SEC. 2026. The chief supervisor shall prepare and furnish all, necessary books, forms, blanks, and instructions for the use and direction of'
the supervisors of election in the several cities and towns in their respective districts; he shall receive the applications of all parties for appointment to such positions; upon the opening, as contemplated in section
two thousand and twelve, of the circuit court for the judicial circuit in.




412       APPENDIX. THE  ELECTIVE  FRANC HISE.
which the commissioners so designated acts, he shall present such applications to the judge thereof, and furnish information to him in respect to the appointment by the court of'such supervisors of election;
he shall require of the supervisors of election, when necessary, lists of
the persons who may register and vote, or either, in their respective
-election districts or voting precincts, and cause the names of those upon
any such list whose right to register or vote is honestly doubted to be
verified by proper inquiry and examination at the respective places by'them assigned as their residences;. and he shall receive, preserve, and
file all oaths of office of supervisors of election, and of all special deputy marshals appointed under the provisions of this title, and all certificates, returns, reports, and records of every kind and nature contemplated or made requisite by the provisions hereof, save where otherwise
herein specially directed.
SEC. 2027. All United States marshals and commissioners who in any
judicial district perform any duties under the preceding provisions relating to, concerning, or affecting the election of Representatives or Delegates in the Congress of the United States, from time to time, and,
with all due diligence, shall forward to the chief supervisor in and for
their judicial district, all complaints, examinations, and records pertaining thereto, and all oaths of office by them administered to any supervisor of election or special deputy marshal, in order that the same may
be properly preserved and filed.
SEC. 2028. No person shall be appointed a supervisor of election or a,deputy marshal, under the preceding provisions, who is not, at the time
of his appointment, a qualified voter of the city, town, county, parish
election district, or voting precinct in which his duties are to be performed.          -
SEC. 2029. The supervisors of election appointed for any county or
parish, in any congressional district, at the instance of ten citizens, as
provided in section two thousand and eleven, shall have no authority to
make arrests, or to perform other duties than to be in the immediate
presence of the officers holding the election, and to witness all their
proceedings, including the counting of the votes and the making of a
return thereof.
SEC. 2030. Nothing in this title shall be construed to authorize the
-appointment of any marshals or deputy marshals, in addition to those
authorized by law, prior to the tenth day of June, eighteen hundred and
seventy-two.
SEC. 203I. There shall be allowed and paid to the chief supervisor, for
his services as such officer, the following compensation, apart from and
in excess of all fees allowed by law for the performance of any duty as
circuit court commissioner: For filing and caring for every return, report, record, document, or other paper required to be filed by him under
any of the preceding provisions, ten'cents; for affixing a seal to any
paper, record, report, or instrument, twenty cents; for entering and indexing the records of his office, fifteen cents per folio; and for arranging




APPENDIX.-ELECTION  OF SENATORS.                 413
and transmitting to Congress, as provided for in section two thousand'
and twenty, any report, statement, record, return, or examination, for
each folio, fifteen cents; and for any copy thereof, or of any paper on
file, a like sum. And there shall be allowed and paid to each supervisor of. election, and each special: deputy marshal who is appointed and
performs his duty under the preceding provisions, compensation at the
rate of five dollars per day for each day he is actually on duty, not exceeding ten days; but no compensation shall be allowed, in any case, to
supervisors of election, except to those appointed in cities or towns of'
twenty thousand or more inhabitants. And the fees of the chief supervisors shall be paid at the Treasury of the United States, such accounts
to be made out, verified, examined, and certified as in the case of ac-.
counts of commissioners, save that the examination or certificate re-.
quired may be made by either the circuit or district judge.
ELECTION OF SENATORS.
SEC. I4. When Senators to be elected.
" 15. Mode of election.
"  i6. Vacancy occurring before meeting of legislature.
17. Vacancy occurring during session of legislature.
" i8. Election of Senators certified.
" 19. Countersign of certificate.
SEC. I4. The legislature of each State which is chosen next preceding
the expiration of the time for which any Senator was elected to represent such State in Congress shall, on the second Tuesday after the meet-,
ing and organization thereof, proceed to elect a Senator in Congress.
SEc. 15. Such election shall be conducted in the following manner:
Each house shall openly, by a viva-voce of each member present, name
one person for Senator in Congress from such State, and the name of
the person so voted for, who receives a majority of the whole number of'
votes cast in each house, shall be entered on the journal of that house
by the clerk or secretary thereof; or if either house fails to give such.
majority to any person on that day, the fact shall be entered on the,
journal, At twelve o'clock meridian of the day following that on which
proceedings are required to take place as aforesaid, the members of the
two houses shall convene in joint assembly, and the journal of each.
"house shall then be read, and if the same person has received a majority
of all the votes in each house, he shall be declared duly elected Senator. But if the same person has not received a majority of the votes,
in each house, or if either house has failed to take proceedings as re-.
quired by this section, the joint assembly shall then proceed to choose,,
by a viva-voce vote of each member present, a person for Senator, and.
the person who receives a majority of all the votes of the joint assem



414  APPENDIX.-ELECTION  OF REPRESENTATIVES.
bly, a majority of all the members elected to both houses being present
and voting, shall be declared duly elected. If no person receives such
majority on the first day, the joint assembly shall meet at twelve o'clock
meridian of each succeeding day during the session of the legislature,
and shall take at least one vote, until a Senator is elected.
SEC. I6. Whenever on the meeting of the legislature of any State a
vacancy exists in the representation of such State in the Senate, the
legislature shall proceed, on the second Tuesday after meeting and or-,ganization, to elect a person to fill such vacancy, in the manner prescribed in the preceding section for the election of a Senator for a full
term.
SEC. 17. Whenever during the session of the legislature of any
State a vacancy occurs in the representation of such' State in the Senate,
similar proceedings to fill such vacancy shall be had on the second
Tuesday after the legislature is organized and has notice of such vacancy.
SEC. I8. It shall be the duty of the executive of the State from which
any Senator has been chosen, to certify his election, under the seal of
the State, to the President of the Senate of the United States.
SEC. I9. The certificate mentioned in the preceding section shall be
countersigned by the secretary of state of the State.
THE ELECTION OF REPRESENTATIVES.
(THE FOLLOWING ARE THE MATERIAL PORTIONS OF
THE ACTS OF CONGRESS IN FORCE UPON THIS
SUBJECT.)
SEC. 22. Should any State deny or abridge the right of any of the
male inhabitants thereof, being twenty-one years of age, and citizens of
the United States, to vote at any election named in the amendment to
the Constitution, article fourteen, section two, except for participation
in the rebellion or other crime, the number of Representatives apportioned to. such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State.
SEC. 23. In each State entitled under this. apportionment to more than
one representative, the number to which such State maybe entitled in the
Forty-third and each subsequent Congress shall be elected by' districts
composed of contiguous territory, and containing as nearly as practicable an equal number of inhabitants, and equal in number to the number of Representatives to which such State may be entitled in Congress,
no one district electing more than one Representative; but in the elec



AP2ENDIX.- ORGANIZATION  OF CONGRESS.   415
tion of Representatives to the Forty-third Congress in any State to
which an increased number of Representatives is given by this appor-.tionment, the additional Representative or Representatives may be
elected by the State at large, and the other Representatives by the
districts as now prescribed by law, unless the legislature of the State
shall otherwise provide before the time fixed by law for the election
of Representatives therein.
SEC. 25. The Tuesday next after the first Monday in November, in
the year eighteen hundred and seventy-six, is established as the day, in
each of the States and Territories of the United. States, for the election,of Representatives and Delegates to the forty-fifth Congress; and the'Tuesday next after the first Monday in November, in every second year
thereafter, is established as the day for the election, in each of said States.and Territories, of Representatives and Delegates to the Congress, commencing on the fourth day of March next thereafter.
SEC. 26. The time for holding elections in any State, District, or Territory, for a Representative or Delegate to fill a vacancy, whether such
vacancy is caused by a failure to elect at the time prescribed by law, or
-by the death, resignation, or incapacity of a person elected, may be prescribed by the laws of the several States and Territories respectively.
SEC. 37. All votes for Representatives in Congress must be by written or printed ballot; and all votes received or recorded contrary to this
section, shall be of no effect. But this section'shall not apply to any
State voting otherwise whose election for Representatives occurs previ~ous to the regular meeting of its legislature, next after the twenty-,eighth day of February, eighteen hundred and seventy-one.
ORGANIZATION OF MEETINGS OF
CONGRESS.
SEC. 28. Oath of Senators.
29. Oath of President of the Senate.
30. Oath of Speaker, members and Delegates.
" 3I. Roll of Representatives-elect.
32. When roll made by Sergeant-at-Arms.
" 33. When by Door-keeper.
34. When President may change the place of meeting.
SEC. 28. The oath of office shall be administered by the President of
the Senate to each Senator who shall hereafter be elected, previous to
his taking his seat.
SEC. 29. When a President of the Senate has not taken the oath of
office, it shall be administered to him by any member of the Senate.




416        APPENDIX.- CONTESTED  ELECTIONS.
SEC, 30. At the first session of Congress after every general election
of Representatives, the oath of office shall be administered by any member of the House of Representatives to the Speaker; and by the Speaker to all the members and Delegates present, and to the Clerk, previous
to entering on any other business; and to the members and Delegates
who afterward appear, previous to their taking their seats.
SEC. 31. Before the first meeting of each Congress the Clerk of the
next preceding House of Representatives shall make a roll of the Representatives elect, and place thereon the names of those persons, and of
such persons only, whose credentials show that they were regularly
elected in accordance with the laws of their States respectively, or the
laws of the United States.
SEC. 32. In case of a vacancy in the office of Clerk of the House of
Representatives, or of the absence or inability of the Clerk to discharge
the duties imposed on him by law or custom relative to the preparation
of the roll of Representatives or the organization of the House, those
duties shall devolve on the Sergeant-at-Arms of the next preceding
House of Representatives.
SEC. 33. In case of vacancies in the office of both the Clerk and the
Sergeant-at-Arms, or of the absence or inability of both to act, the duties of the Clerk relative to the preparation of the roll of the House of
Representatives, or the organization of the House shall be performed
by the Door-keeper of the next preceding House of Representatives.
SEC, 34. Whenever Congress is about to convene, and from the prevalence of contagious sickness, or the existence of other circumstances,
it would, in the opinon of the President, be hazardous to the lives or
health of the members to" meet at the seat of Government, the President is authorized, by proclamation, to convene Congress at such other
place as he may judge proper.
CONTESTED ELECTIONS.
SEC. IO5. Notice of intention to contest.
* io6. Time for Answer.
"  Io7. Time for taking testimony.
"  IoS. Notice of depositions, service.
"  Io9. Testimony taken at several places at same time.
" IIo. Who may issue subpoenas.
" IIi. What the subpoena shall contain.
" I2. When justices of the peace may act.
" II3. Depositions, by consent.
" II4. Service of subpcena.
" II5. Witnesses need not attend out of' the county.
" II6. Penalty for failure to attend or testify




APPENDIX. —CONTESTED  ELECTIONS.                 417
SEC. 117. Witnesses outside of the district.
"   18. Party notified may select an officer.
" II9. Depositions taken by party or agent.
" I20. Examination of witnesses.
" I2I. Testimony, to what confined.
1 I22. Testimony written out and how attested.
" I23. Production of papers.
124. Adjournments.
" 125. Notice &c. attached to deposition.
" I26, Copy of notice and answer to accompany testimony.
I27. How testimony to be sent to Clerk of House; how opened.
" 128. Fees of witnesses.
" I29. Fees of officers.
I30. Expenses of contest.
SEC. Io05. Whenever any person intends to contest an election of any
member of the House of Representatives of the United States, he shall,
within thirty days after the result of such'election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the member whose seat he
designs to contest, of his intention to contest the same, and, in such
notice, shall specify particularly the grounds upon which he relies
in the contest.
SEC. i66. Any member upon whom the notice mentioned in the
preceding section may be served shall, within thirty days after the service thereof, answer such notice, admitting or denying the facts alleged
therein, and stating specifically any other grounds upon which he rests
the validity of his election; and shall serve a copy of his answer upon
the contestant.
SEC. Io7. In all contested-election cases the time allowed for taking
testimony shall be ninety days, and the testimony shall be taken in the
following order. The contestant shall take testimony during the first
forty days, the returned member during the succeeding forty days, and
the contestant may take testimony in rebuttal only during the remain —
ing ten days of said period.
SEC. Io8. The party desiring to take a deposition under the provisions of this chapter shall give the opposite party notice, in writing, of
the time and place, when and where the same will be taken, of the name
of the witness to be examined and their places of residence, and of the
name of an officer before whom the same will be taken. The notice
shall be personally served upon the opposite party, or upon any agent
or attorney authorized by him to take testimony or cross-examine witnesses in the matter of such contest, if, by the use of reasonable diligence, such personal service can be made; but if, by the use of such diligence, personal service cannot be made, the service may be made by
leaving a duplicate of the notice at the usual placeof abode of the opposite party. The notice shall be served so as to allow the opposite
party sufficient time by the usual route of travel to attend, an d one day
27




418        APPENDIX.-CONTESTED  ELECTIONS.
for preparation, exclusive of Sundays and the day ol service. Testimony in rebuttal may be taken on five days' notice.
SEC. IO9. Testimony in contested election cases may be taken at two
or more places at the same time.
SEc. IIO. gWhen any contestant or returned member is desirous of
obtaining testimony respecting a contested election, he may apply for a
subpoena to either of the following officers who may reside within the
congressional district in which the election to be contested was -held:
First. Any judge of any court of the United States.
Second. Any chancellor, judge, or justice of a court of record of any
State.
Third. Any mayor, recorder, or intendent of any town or city.
Fourth. Any register in bankruptcy or notary public.
SEC.:I I. The officer to whom the application authorized by the pre^ceding section is made, shall thereupon issue his writ of subpoena, directed to all such witnesses as shall be named to him, requiring their attendance before him, at some time and place named in the subpoena, in
-order to be examined respecting the contested election.
SEC. I I2. In case none of the officers mentioned in section one hundred and ten are residing in the congressional district from which the'election is proposed to be contested, the application thereby authorized
may be made to any two justices of the peace residing within the dis-trict; and they may receive such application, and jointly proceed upon it.
SEC. 113. It shall be competent for the parties, their agents or attorneys authorized to act in the premises, by consent in writing, to take,depositions without notice; also, by such written consent, to take depositions (whether upon or without notice,) before any officer or officers
authorized to take depositions in common law, or civil actions, or in
chancery, by either the laws of the United States, or of the State in
which the same may be taken, and to waive proof of the official character of such officer or officers. Any written consent given as aforesaid
shall be returned with the depositions.
SEC. I 14. Each witness shall be duly served with a subpoena, by a,copy thereof delivered to him or left at his usual place of abode, at least
five days before the day on which the attendance of the witness is required.
SEC. II5. No witness shall be required to attend an examination out
of the county in which he may reside or be served with a subpoena.
SEC. ii6. Any person who, having been summoned in the manner
above directed, refuses or neglects to atttend and testify, unless prevented by sickness or unavoidable necessity, shall forfeit the sum of twenty
dollars, to be recovered, with costs of suit, by the party at whose instance the subpoena was issued, and for his use, by an action of debt, in
any court of the United States; and shall also be liable to an indictment
for a misdemeanor, and punishment by fine and imprisonment.
SEC. II7. Depositions of witnesses residing outside-of the district
and beyond the:reach of a subpoena may be taken before any officer au



APPENDIX.-CONTESTED  ELECTIONS.                   419
thorized by law to take testimony in contested election cases in the district in which the witness to be examined may reside.
SEC. Ii8. The party notified as aforesaid, his agent or attorney, may,
if he see fit, select an officer, (having authority to take depositions in
such cases,) to officiate with the officer named in the notice, in the taking of the depositions; and if both such officers attend, the depositions
shall be taken before them both, sitting together, and be certified by
them both. But if only one of such officers attend, the depositions may
be taken before and certified by him alone.
SEC. II9. At the taking of any deposition under this chapter, either
party may appear and act in person, or by agent or attorney.
SEC.'120. All witnesses who attend in obedience to a subpoena, or
who attend voluntarily at the time and place appointed, of whose examination notice has been given, as provided by this chapter, shall then
and there be examined on oath by the officer who issued the subpoena
or, in case of his absence, by any other officer who is authorized to issue
such subpoena, or by the officer before whom the depositions are to be
taken by written consent, or before whom the depositions of witnesses
residing outside of the district are to be taken, as the case may be,
touching all such matters respecting the election about to be contested
as shall be proposed by either of the parties or their agents.
SEC. I2I. The testimony to be taken by either party to the contest
shall be confined to the proof or disproof of the facts alleged or denied
in the notice and answer mentioned in sections one hundred and five and
one hundred and six.
SEC. 122. The officers shall cause the testimony of the witnesses, together with the questions proposed by the parties or their agents, to be
reduced to writing in his presence, and in the presence of the parties or
their agents, if attending, and to be duly attested by the witnesses respectively.
SEC. I23. The officer shall have power to require the production of
papers; and on the refusal or neglect of any person to produce and deliver up any paper or papers in his possession pertaining to the election,
or to produce and deliver up certified or sworn copies of the same in
case they may be official papers, such person shall be liable to all the
penalties prescribed in section one hundred and sixteen. All papers
thus produced, and all certified or sworn copies of official papers, shall
be transmitted by the officer, with the testimony of the witnesses, to
the Clerk of the House of Representatives.
SEc. 124. The taking of the testimony may, if so stated in the notice,
be adjourned from day to day.
SEC. I25. The notice to take depositions, with the proof or acknowledgment of the service thereof, and a copy of the subpoena, where any
has been served, shall be attached to the depositions when completed.
SEC. I26. A copy of the notice of contest, and of the answer of the
returned member, shall be prefixed to the depositions taken, and transmitted with them to the Clerk of the House of Representatives.




420        APPENDIX.-CONTESTED  ELECTIONS.
SEC. 127. All officers taking testimony to be used in a contested election case, whether by deposition or otherwise, shall, when the taking of
the same is completed, and without unnecessary delay, certify and
carefully seal and immediately forward the same, by mail, addressed ta
the Clerk of the House'of Representatives of the U. S., Washington;
and shall also indorse upon the envelope containing such deposition or
testimony, the name of the case in which it is taken. together with the
name of the party in whose behalf it is taken, and shall subscribe such
indorsement. Upon the written request of either party the Clerk of
the House of Representatives shall open any deposition at any time
after he shall have received the same, and he may furnish either party
with a copy thereof.
SEC. I28. Every witness attending by virtue of any subpoena herein
directed to be issued shall be entitled to receive the sum of seventy-five
cents for each day's attendance, and the further sum of five cents for
every mile necessarily traveled in going and returning. Such allowance shall be ascertained and certified by the officer taking the examination, and shall be paid by the party at whose instance such witness was
summoned.
SEC. I29. Each judge, justice, chancellor, chief executive officer of a
town or city, register in bankruptcy, notary public, and justice of the
peace, who shall be necessarily employed pursuant to the provisions of
this chapter, and all sheriffs, constables, or other officers who may be
employed to serve any subpoena or notice herein authorized, shall be entitled to receive from the party at whose instance the service shall have
been performed, such fees as are allowed for similar services in the
State, wherein such services may be rendered.
SEC. I30. No payment shall be made by the House of Representatives, out of its contingent fund or otherwise, to either party to a contested election case for expenses incurred in prosecuting or defending
the same.
(The following are the provisions of an act of Congress, approved
March 2d, I875, being chapter II9, acts second session, 43d Congress:)
Be it enacted by the Senate and House of Representatives of the United
States of America, in Congress assembled.
That so much' of section one hundred and twenty-seven of the Revised
Statutes, as requires the Clerk of the House of Representatives to open,
upon the written request of either party, any deposition in cases of contested election, after he shall have received the same, and prior'to the
meeting of Congress, be, and the same is hereby repealed.
Sec. 2. That section one hundred and seven of the Revised Statutes
of the United States shall be construed as requiring all testimony in
cases of contested elections to be taken within ninety days from the day
on which the answer of the returned member is served upon the contestant.




APPENDIX.-PRESIDENTIAL  ELECTIONS.                 421
PRESIDENTIAL ELECTIONS.
Sec. I3I. Time of appointing electors.
" I32. Number of Electors.
" I33. Vacancies in electoral college.
I I34. Failure to make a choice on the appointed day.
I35. Meeting of electoral college.
" I36. List of names of electors to be furnished to them.
"  I37. Manner of voting.
"  I38. Certificates to be made and signed.
"  I39. Certificates to be sealed and indorsed.
"  I40. The transmission of the certificates.
" I4I. When Secretary of State shall send for district judge's list.
142. Counting the electoral votes in Congress.' I43. Provision for absence of President of the Senate.
1 I44. Mileage of messengers.
"  I45. Forfeiture for messengers' neglect of duty.
"  146. Vacancy in both offices.
" I47. Notification of vacancies to be published.
"  I48. Requisites of the notification.
"  I49. Time of holding election to fill vacancy.
I50o. Regulations for quadrennial elections made applicable to
elections to fill vacancies.
" I5I. Resignation or refusal of office.
Sec. I3I. Except in case of a presidential election prior to the ordinary period, as specified in sections one hundred and forty-seven to one
hundred and forty-nine, inclusive, when the offices of President and
Vice-President both become vacant, the electors of President and VicePresident shall be appointed, in each State, on the Tuesday next after
~the first Monday in November, in every fourth year succeeding every
-election of a President and Vice-President.
Sec. I32. The number of electors shall be equal to the number of
Senators and Representatives to which the several States are by law en-titled at the time when the President and Vice-President to be chosen
-come into office; except, that where no apportionment of Representatives has been made after any enumeration, at the time of choosing
electors, the number of electors shall be according to the then existing
apportionment of Senators and Representatives.
Sec. I33. Each State may, by law, provide for the filling of any va-,cancies which may occur in its college of electors when such college
meets to give its electoral vote.
Sec. I34. Whenever any State has held an election for the purpose,of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in
such manner as the legislature of such State may direct.
Sec. I35. The electors for each State shall meet and give their votes
upon the first Wednesday in December, in the year in which they are




422       APPENDIX.-PRESIDENTIAL  ELECTIONS.
appointed, at such place, in each State, as the legislature of such State
shall direct.
Sec. I36. It shall be the duty of the executive of each State to cause
three lists of the names of the electors of such State to be made and
certified, and to be delivered to the electors on or befbre the day on:
which they are required, by the preceding section, to meet.
Sec. I37. The electors shall vote for President and Vice-President
respectively, in the manner directed by the constitution.
Sec. I38. The electors shall make and sign three certificates of all the
votes given by them, each of which certificates shall contain two distinct lists, one of the votes for President, and the other of the votes for
Vice-President, and shall annex to each of the certificates one of the
lists of the electors which shall have been furnished to them by direction of the executive of the State.
Sec. I39. The electors shall seal up the certificates so made by them,,
and certify upon each that the lists of all the votes of such State given
for President, and of all the votes given for Vice-President, are contained therein.
Sec. I40. The electors shall dispose of the certificates thus made by
them in the following manner:
One. They shall, by writing under their hands, or under the hands of
a majority of them, appoint a person to take charge of and deliver to
the President of the Senate, at the seat of Government, before the first
Wednesday in January then next ensuing, one of the certificates.
Two. They shall forthwith forward by the post-office to the President
of the Senate, at the seat of Government, one other of the certificates.
Three. They shall forthwith cause the other of the certificates to be.
delivered to the judge of that district in which the electors shall assemble.
Sec. I4I. Whenever a certificate of votes from any State has not
been received at the seat of Government on the first Wednesday of Jan-.
uary, indicated by the preceding section, the Secretary of State shall
send a special messenger to the district judge in whose custody one cer —
tificate of the votes from  that State has been lodged, and such judge:
shall forthwith transmit that list to the seat of Government.
Sec. I42. Congress shall be in session on the second Wednesday in
February succeeding every meeting of the electors, and the certificates,
or so many of them as have been received, shall then be opened, the
votes counted, and the persons to fill the offices of President and Vice-.
President ascertained and declared, agreeably to the constitution.
Sec. I43. In case there shall be no President of the Senate at the seatof Government on the arrival of the persons intrusted with the certificates of the votes of the electors, then such persons shall deliver such:
certificates into the office of the Secretary of State, to be safely kept,
and delivered over as soon as may be to the President of the Senate.
Sec" I44 Each of the persons appointed by the electors to deliver
the ce:rtificates of votes to the President of the Senate shall be allowed,,




APPENDIX.  PRESIDENTIAL  ELECTIONS.                423
on the delivery of the list intrusted to him, twenty-five cents for every
mile of the estimated distance, by the most usual road, from the place of
meeting of the electors to the seat of Government of the United States.
Sec. I45. Every person who, having been appointed, pursuant to subdivision one of section one hundred and forty, or to section one hundred
and forty-one, to deliver the certificates of the votes of the electors to
the President of the Senate, and having accepted such appointment,
shall neglect to perform the services required from him, shall forfeit the
sum of one thousand dollars.
Sec. I46. In case of removal, death, resignation, or inability of both
the President and Vice-President of the United States, the President of
the Senate, or, if there is none, then the Speaker of the House of Representatives, for the time being, shall act as President until the disability is removed or a President elected.'Sec. I47. Whenever the offices of President and Vice-President both'become vacant, the Secretary of State shall forthwith cause a notification thereof to be made to the executive of every State, and shall also
cause the same to be published in at least one of the newspapers printed
in each State.
Sec. 148. The notification shall specify that electors of a President
and Vice-President of the United States shall be appointed or chosen in'the several States, as follows:
First. -If there shall be the space of two months yet to ensue between
the date. of such notification and the first Wednesday in December the'n
nextensuing, such notification shall specify that the electors shall be appointed or chosen within thirty-four days preceding such first Wednesday in December.
Second. If there shall not be the space of two months between the
date of such notification and such first Wednesday in December, and if
the term for which the President and Vice-President last in office were
elected will not expire on the third day of March next ensuing, the notification shall specify that the electors shall be appointed or chosen
within thirty-four days preceding the first Wednesday in December in
the year next ensuing.. But if there shall not be the space of two
months between the date of such notification and the first Wednesday
in December then next ensuing, and if the term for which the President
and Vice-President last in office were elected will expire on the third
day of March next ensuing, the notification shall not specify that electors are to be appointed or chosen.
Sec. I49. Electors appointed or chosen upon the notification prescribed by the preceding section, shall meet and give their votes upon
the first Wednesday of December, specified in the notification.
Sec. I50. The provisions of this title, relating to the quadrennial election of President and Vice-President, shall apply with respect to any
election to fill vacancies in the offices of President and Vice-President,
held upon a notification given when both offices become vacant.
Sec. I5I. The only evidence of a refusal to accept, or of a resignation




424 APPENDIX. —COUNTING THE ELECTORAL VOTE.
of the office of President or Vice-President, shall be an instrument in
writing, declaring the same, and subscribed by the person refusing to accept or resigning, as the case may be, and delivered into the office of the
Secretary of State.
(THE FOLLOWING IS THE TWENTY-SECOND JOINT RULE
OF THE TWO HOUSES OF CONGRESS REGULATING
THE MANNER OF COUNTING THE ELECTORAL VOTE,
AND OF RECORDING AND DECLARING THE RESULT.)
2'2. The two Houses shall assemble in the hall of the House of Representatives, at the hour of'one o'clock p. m., on the second Wednesday
in February next succeeding the meeting of the electors of President
and Vice-President of the United States, and the President of the Senate'shall be their presiding officer; one teller shall be appointed on the
part of the Senate, and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of
the Senate, the certificates of the electoral votes; and said tellers having
read the same in the presence and hearing of the two houses thus assembled, shall make a list of the votes as they shall appear from the
said certificates;: and the votes having been counted, the result of the
same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote and the names of the persons, if
any elected, which announcement shall be deemed a sufficient declaration of the persons elected President and Vice-President of the United
States, and, together with a list of the votes, be entered on the journals
of the two houses.
If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the
*same having been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall.be submitted to that body for its
decision; and the Speaker of the House of Representatives shall, in
like manner, submit said question to the House of Representatives for:its decision. And no question shall be decided affirmatively, and no
vote objected to shall be counted, except by the concurrent votes of the
two houses; which being obtained, the two houses shall  immediately
reassemble, and the presiding officer shall then announce the decision
*of the question submitted; and upon any such question there shall be
-no debate in either house. And any other question pertinent to the object for which the two houses are assembled may be submitted and de-termined'in like manner.
At such joint meeting of the two houses seats shall be provided as




APPENDIX.-RESIDENCE.                  425
follows: for the President of the Senate, the "Speaker's chair;" for the
Speaker, a chair immediately upon his left; for the senators, in the body
of the hall upon the right of the presiding officer; for the representatives, in the body of the hall not occupied by the senators; for the
tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk's desk; for the other officers of the two houses, in
front of the Clerk's desk and upon either side of the Speaker's platform.
Such joint meeting shall not be dissolved until the, electoral votes are
all counted and the result declared; and no recess shall be taken, unless
a question shall have arisen in regard to counting any of such votes, in
which case it shall be competent for either house, acting separately in
the manner hereinbefore provided, to direct a recess not beyond the
next day, at the hour of one o'clock p. m.-Febrzcary 6, I865.
RESIDEN CE.
House of Representatives, 42d Congress, 2d Session, Report No. 11.
JOHN  CESSNA  oVS. BENJAMIN  F. MEYERS.
FFBRUARY 7, I872. —Laid on the table and ordered to be printed.
Mr. Hoar, from the Committee on Elections, made the following
REPORT:
THE COMMITTEE ON ELECTIONS, TO WHOM WAS REFERRED THE MEMORIAL OF JOHN CESSNA, CLAIMING TO BE ADMITTED TO THE SEAT
FROM THE SIXTEENTH CONGRESSIONAL DISTRICT OF PENNSYLVANIA, RESPECTFULLY REPORT:
The case has required the consideration of many very interesting
questions of law, and an examination, by itself, of the evidence in regard
to the right to vote of each of several hundred persons. The committee have given it patient and thorough study.
The majority for the sitting member according to the returns, when
correctly added, is fourteen. The contestant has shown that more than
fourteen illegal votes were cast for his antagonist, and would have established his claim to the seat, were it not for illegal votes which were
cast for the contestant.himself, the evidence of which, so far as appears,




426                APPENDIX.  RESIDENCE.
first came to his knowledge when introduced in the case. The questions
of law which have arisen are, some of them, exceedingly doubtful, and
there are statements of the law in the reports of previous cases which
would be quite likely to induce an expectation on the part of the contestant of a different result in the whole matter. He seems, therefore,.
to have been well warranted in the belief that his duty to the people required him to claim the seat. The whole case has been conducted with
entire propriety on both sides.
The majority for the sitting member, as found by the return judges,
is fifteen. There is a mistake in the footing, and one should be deducted, leaving fourteen. The contestant claims that three hundred and
twenty-eight illegal votes were cast for the sitting member; that two
lawful votes which were cast for himself were not counted, and that
eight legal votes which were offered for him were rejected. The sitting
member, joining issue on these allegations, claims also that three hundred and forty-one votes were illegally thrown for contestant. Of these
contestant admits that eighty-one have been proved to be illegal.
The provisions of the constitution of Pennsylvania, concerning the
qualification of voters, are as follows:
"Article III, Section I: In elections by the citizens every (white).
freeman of the age of twenty-one years, having resided in this State one,
year, and in the election district where he offers to vote ten days imme —
diately precedinig such election, and within two years paid a State or
county tax which shall have been assessed at least ten days before theelection, shall enjoy the rights of an elector. But a citizen of the United States who had previously been a qualified voter of this State, and.
removed therefrom and returned, and who shall have resided in the
election district and paid taxes as aforesaid, shall be entitled to vote after residing in the State six months: Provided, That (white) freemen
citizens of the United States between the ages of twenty-one and
twenty-two years, and having resided in the State one year and in the
election district ten days as aforesaid, shall be entitled to vote, although
they shall not have paid taxes."
The contestant claims, first, that he received a majority of the votes
cast at the election by lawfully qualified voters; and, second, that the
votes of certain other persons, lawfully qualified, who desired'to vote
for him, were excluded, either from the box or the count, by the mistake
or misconduct of the election officers. The result to which an examination of the first claim has brought us renders it needless to consider
the second.
The questions which it is material to consider relate either to the
qualification of voters under the clause in the constitution of Pennsylvania just cited, or to the rules of evidence which should govern the
House in election cases.
Under these constitutional provisions, the burden of proof, when
either party insists that a vote should be deducted from those cast and
returned for his competitor, is upon that party to show that the person




APPENDIX.-  RESIDENCE.                     42t
whose vote is in question voted; that the vote was for the competitor;.
that the voter lacked some one of the following qualifications, viz; citizenship of the United States; the age of twenty-one' residence in the
election district for ten days just previous to the election; residence in
the State one year just previous to the election, or for six months, if previously a qualified voter; payment, within two years, of a State or coun —
ty tax, assessed at least ten days before the election, or, in lieu thereof,
being between twenty-one and twenty-two years old.
It is claimed by the contestant that a considerable number of thosewho voted for his competitor lacked the qualification of residence in the
election district. The largest number to whom this objection applies;.
came into the election district for the purpose of working npon a rail —
road in process of construction therein, were employed in building said-.
railroad, and were not proved to have formed any intention to reside in,
the district after its completion. The length of time which the completion of the road would be likely to occupy was not distinctly proved,.
but it was shown that persons who were in fact at work upon it continued.
in the district for a longer period than eighteen months. The committee have carefully considered the legal question which is thus raised.
The word "residence" used in the constitution of Pennsylvania in describing the qualification of voters is equivalent to "domicile," not in
the sense in which a man may have a commercial domicile or residencein one country, while his domicile of origin and of allegiance is in another, but in the broadest sense of the term. As it is upon the meaning
of this word that the case chiefly turns, it will be well to consider it a
little more fully.
The word "domicile," or "residence," as used in law, is incapable of'
exact definition. Inquiries into it are very apt to be confused by taking
the tests which have been found satisfactory in some cases and attempting to apply them as inflexible rules in all. Probably the definition
which is most expressive to the American mind is that a man's domicileis "where he has his home." Two or three rules, however, are well established. A man must have a domicile somewhere; a domicile oncegained remains until a new one is acquired; no man can have two domiciles at the same time. With these exceptions, it will, we believe, be
found that nearly every rule laid down on the subject in the books, even
if generally useful, fails to be of universal application, and would be opposed to the common sense of mankind if extended to some states offact that may arise. For instance, Vattel defines domicile to be "a fixed'
residence in anyplace zvith an intention of always staying there."  On this.
Judge Story (Conflict of Laws, Sec. 43,) well remarks:  "This is not an.
accurate statement. It would be more correct to say that that place is
properly the domicile of a person in which his habitation is fixed, without any present intention of removing therefrom." But-certainly Judge
Story's definition is not much better. A man's domicile remains afterhe forms the intention of removing therefrom, and sometimes even after he removes, until he gets another. A man may acquire'a domicile,




428              APPENDIX.-RESIDENCE.
if he be personally present in a place and elect that as his home, even
if he never design to remain there always, but design at the end of some
short time to remove and acquire another. A clergymen of the Meth-,odist church who is settled for two years may surely make his home for
two years with his flock, although he means, at the end of that period,
-to remove and gain another. So of the principle upon which the contestant most relies in the present case.
He claims-and many expressions can be found used by commenta-'tors and in judicial decisions which seem to support the claim-that per-:sonal presence in a place with intent to remain there only for a limited
time and for the accomplishment of a temporary purpose, and to depart
when that purpose is accomplished, will not constitute a residence.
This is true as a general rule. It is true of those persons, probably the
greater number, who, while so present and engaged in business, have'some other principal seat of their interests and affections elsewhere.
Most men have some permanent home, the claims of which outweigh'those of a place of temporary sojourn. The place where a man's property is, where his family is, the place to which he goes back from time
*to time whenever no temporary occasion calls him elsewhere, the domicile of his origin, where the permanent and ordinary business of his life
is conducted-that is to the ordinary man the place of his home. But
we are now dealing with a class of persons who have no property, who
have no family, or whose family moves with them from place to place,
who have no place to return to from temporary absences, the domicile'of whose origin is in another country, and has been in the most solemn
manner renounced, and the ordinary business of whose life consists in
successive temporary employments in'different places.
Suppose a man, single, with no property, to come from Ireland and
be employed all his life on railroads or other like works in different
places in succession. If he does not acquire a residence he can never
become a citizen, because he never would reside in this country at all.
It seems to us that to such persons the general rule above stated does
not apply, where a man who has no interests or relations in life which
*afford a presumption that his home is elsewhere, comes into an election
district for the purpose of working on a railroad for a definite or an in-'definite period, being without family, or having his family with him, expecting that the question whether he shall remain or go elsewhere is to
-depend upon the chances of his obtaining work, having abandoned both
in fact and in intention all former residences, and intends to make that
his home while his work lasts-that will constitute his residence, both
for the purpose of such jurisdiction over him as residence confers, and
-for the purpose of exercising his privileges as a citizen. Of course the
intent above supposed must be in good faith, and an intent to make
*such district the home for all purposes. The party's intent'to vote in
*the district where he is, he knowing all the time that his home is elsewvhere, will not answer the law.




APPENDIX.-RESIDENCE.                       429
The rule is stated by Chief Justice Shaw, in Lyman vs. Fiske, (5 Peck.
234,) as follows: "It is difficult to give an exact definition of habitancy,
In general terms, one may be designated as an inhabitant of that place
which constitutes the principal seat of his residence, of his business,
pursuits, connections, attachments, and of his political and municipal
relations. It is manifest, therefore, that it embraces the fact of residence
at a place with the intent to regard it his home. The act and the intent
must occur, and the intent may be inferred from declarations and conduct. It is often a question of great difficulty, depending upon minute
and complicated circumstances, leaving the question in so much doubt
that a slight circumstance may turn the balance. In such a case the
mere declaration of the party, made in. good faith, of his election to
make the one place rather than the other his home, would be sufficient
to turn the scale."
The article in the appendix to vol. 4 of Dr. Lieber's Encyclopaedia
Americana, title Domicile, written by Judge Story, is, perhaps, the best
treatise on this subject to be found. He says: "In a strict and legal
sense, that is properly the. domicile of a person where he has fixed his
true, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning." It is often a mere
question of intention. If a person'has actually removed to another
place, with an intention of remaining there for an indefinite time, and
as a place of present domicile, it becomes his place of domicile, notwithstanding he may have a floating intention to go back at some future,
period. Aforizori would this be true if his "floating intention" were to,
go elsewhere in future, and not-to go back, as in such case the abandonment of his former home would be complete.
In the Allentown election case (Brightly's Lead. Cases on Elections,,
475,) it is said: " Unmarried men, who have fully severed the parental
relation, and who have entered the world to labor for themselves, usu-.
ally acquire a residence in the district where they are employed, if the
election officers be satisfied they are honestly there pursuing their employment, with no fixed residence elsewhere, and that they have not
come into the district as'colonizers,' that is, for the mere purpose of
voting, and going elsewhere as soon as the election is held. The unmarried man who seeks employment from point to point, as opportunity
offers, and who has severed the parental relation, becomes a laborer, producing for himself, and thus adds to the productive wealth of the community in which he resides, being willing not only to enjoy political
privileges, but also to assume and discharge political and' civil duties."'
Afortiori would this reasoning apply to the married laborer who takes
his family with him.
The habits of our people, compared w'ith many other nations, are migratory.'To persons, especially young men, in many most useful occupations, the choice of a residence is often experimental and temporary.
The home is chosen with intent to retain it until the opportunity shall
offer of a better. But if it be chosen as a home, and not as a mere place




~430-               APPENDIX.  RESIDENCE.
"of temporary sojourn, to which some other place, which is more truly
the principal seat of the affections or interests, has superior claim, we
see not why the policy of the law should not attach to it all the privileges-which belong to residence, as it is quite clear that it is the resi-dence in the common and popular acceptation of the term.
The case of Barnes vs. Adams, (3 Con. El. Cas., 771,) does not, when
carefully examined, conflict with these rules. The passage cited from,that case is not a statement of the grounds on which the House or even
ithe committee determined the case, but is a concession to the party
against whom it was decided. It therefore, if it bore the meaning conAtended for, would not be authority in future cases. But the language,
taken together, it seems to us, means only'that going into an election.precinct for a temporary purpose, with the intent to leave it when that
purpose is accomplished, no other intent and no other' fact appearing, is
not enough to gain a residence. In this view, it is not in conflict with'the opinion here expressed.'It is true that, as was remarked in the outset, a former residence con1tinues until a new one is gained. But in determining the question
whether a new one has been gained, the fact that everything which con*stituted the old one-dwelling house, personal presence, business relations, intent to remain-has been abandoned is a most significant fact.
5. We have, then, to apply these principles to the evidence in the case.
The contestant claims that three principal classes of persons who volted for the sitting member were disqualified by reason of non-residence,
viz: persons who came into the district for the purpose of working on
the railroad; students at the university,'who came from other districts
solely for the sake of pursuing their studies, and paupers supported in a
poor-house common to all the districts in the county,,who came to the.poor-house from another district, and voted in the district where it is!situated,
The-cases of the railroad laborers and contractors should be disposed
of by the following rules:;st. Where no other fact appears than that a person, otherwise qualified, came into the election district for the purpose of working on the
railroad for an indefinite period, or until it should be completed, and votted at the election, it may or may not be true that his residence was in
the district. His vote having been accepted by the election officers, and
the burden being on the other side to show that they erred, we are not'warranted in deducting the vote.
2d. Where, in addition, it appears that such voter had no dwelling'house elsewhere, had his family with him, and himself considered the
voting place as his home until his work on the railroad should be over,
we consider his residence in the district affirmatively established.
3d. On the other hand, where it appears that he elected to retain a
home, or left a family or a dwelling place elsewhere, or any other like,circumstances appear negativing a residence in the voting precinct, the




APPENDIX.  RESIDENCE.                      431
vote should be deducted from  the candidate for whom  it is proved to
have been cast.
The principles applicable to the students are not dissimilar. The law,;as it applies to this class of persons, is fully and admirably stated by the
Supreme Court of Massachusetts, in an opinion given to the legislature, and reported in 5th Metcalf, and which is cited with approbation'in nearly all the subsequent discussions of the subject. Under the rule
there laid down, the fact that the citizen came into the place where he
claims a residence, for the sole purpose of pursuing his studies at a
school or college there situate, and has no design of remaining there
after his studies terminate, is not necessarily inconsistent with a legal
residence, or want of legal residence, in such place. This is to be determined by all the circumstances of each case. Among such circumstances, the intent of the party, the existence or absence of other ties or
interests elsewhere, the dwelling place of the parents, or, in the case of
an orphan just of age, of such near friends as he had been accustomed
to make his, home within his minority, would of course be of the highest importance. See Putnam vs. Johnson, Io Mass., 488.
The case of the paupers presents greater difficulty. Under the laws
of Pennsylvania it is conceded they may be entitled to vote. In several
contested election cases cited by the contestant, it is stated by the committee that, in the absence of statute regulations on the subject, a pauper abiding in a public almshouse, locally situated in a different district
from that where he dwells when he becomes a pauper, and by which he
is supported, away from his original home, does not thereby change his
-residence, but is held constructively to remain at his old home.
Monroe vs. Jackson, 2 Elect. Cas., 98.
Covode vs. Foster, forty-first Congress.
Taylor vs. Reading, forty-first Congress.
And there are some strong reasons for this opinion. The pauper is
under a species of confinement. He must submit to regulations imposed by others, and the place of his abode may be changed without his,consent. Having few of the other elements which ordinarily make up;a domicile, the element of choice also, in his case, almost wholly disappears. There are also serious reasons of expediency against permitting.a class of persons who are necessarily so dependent upon the will of one
public officer to vote in a town or district in whose concerns they have
no interest. On the other hand, the pauper's right to vote is recognized
by law. It can practically very seldom be exercised except in the near
neighborhood of the almshouse. In the case of a person so poor and
helpless as to expect to be a life-long inmate of the poor house, it is, in,every sense in which the word can be used, really and truly his resi-,dence-his home. And it is important that these constitutional provisions as to suffrage -should be carried out in their simplest and most
natural sense, without the introduction of-artificial or technical constructions. It will, however, be unnecessary to determine this question, as
-will hereafter appear.




TABLE OF CASES CITED.
A.
SECTION..
Abbott, case of.................................................235
Adams           vs.       Wilson.......................... 411
" " Woodbridge.................150;
Anderson    "             Baker.....................                    3,  496
"' " Colson................ I................322
Dunn.................................524,   527
"- " Mulliken.......................... 496
Andrews         "         Herne..1................................   149... Lancier..................................190
Archer " Allen.......................................279,
Arnold          "         Lea.......................................129
Arris           "         Stukely...........................308.
Ashby            "        White...........................498
Att'y Gen'l "             Barstow..................................84:
" " " Ely...................396
Augustin        "         Eggleston..197,   430.
B.
Bacon           vs.         Benchley et al............................. 503
"             "           York....................................... 84
Bailey, case of,.....2............. 249, 250
Baird          vs.         Bank.......................                                   79
Baldwin         "          Trowbridge...................... 109,  111,  112
Baker & Yell case of............................................ 238
Barker         vs.         People...................................... 19
Barnes           "         Adams......................77,  174,  276,  364
Barret                      Bailey...................................93
Barrey           "         McCreery....................227
Barto           "          Himrod..................................152
Basset          "          Bailey..................................... 92
Batman  "   McGowan.......375, 377
Batturs    "               Megary.................... 282, 303
Beal            "          Ray..................................139
Beck            "          McGhee...............................1.....15
Bennett         "          Chapman..............................53,  175
Bevard          "          Hoffinan....................................496




TABLE OF CASES CITED.                          433
SECTI ON.
Biddle          vs.       Richards....................... 245
": Wing.............41, 58, 423
Birch            "       VanHorn................................33
Blackwell        "       Thompson.............................477
Blair            "       Barrett..............  6, 77, 78, 352, 438
("             "    Ridgely..............31
Blanchard        "       Stearns..........................495
Boles           "    Edwards.............347
Bonner " State of Georgia.............322
Bonzano case of.............................................178
Boren  vs. Smith..458
Botts            "       Jones..........................342
Bourland " Hildreth..............................112
Bowen            "       Hixon..........................93,  276
Bridgeport      "        Railroad.....................183
Brockenbrough"           Cable.........................145
Brooks                   Iavis..................................348
Brown                    Commonwealth.............48
Brower          "        O'Brien........................334, 337
Brown " O'Brien............................ 83
Bruce " Loan............        416, 417
Bunn " Riker..1.......................  150
Burleigh        "        Armstrong................30, 52
Burnham         "        Morrisey.....................424
Bush            "        Monroe.....................321
Butler          "        Lehman................................277
Byington " Vandever...........    238
Byrne et al   "    State................493
C.
Capen           rs.      Foster.............................. 7, 495
Carpenter case of.....................................127, 281
Carson          vs.      Phetridge..............................233
Carter           ((      Harrison.......................... 496
Casement case of.............................................172
Castello       vs.       St. Louis Circuit Court..................276
Cather " Smith...................................25
Caulfield    "    Bullock.......496
Cessna          "        Myers......38, 41, 42, 271
Chadwick        "        Melvin.................114, 115, 140, 304
Chandler " Main................................... 112
Chapman         "       Ferguson.......................... 345, 397
Chase          "        Miller.............................39, 112
Chavis " Clever...........................160
Chirac " Chirac.............................                          54
Chrisman        "       Anderson...........................3, 174
Citizens "Jno. Sargeant............................ 169
28




434                          TABLE OF CASES CITED.
SECTION.
Clark case of...................................................207
Clark                vs.          Buchanan.......................9..........9
4" "                           Hall.............................                      76,   175
" " McKenzie................................321
Clayridge " Evelyn....................................231
Clements case of.................... 171
Cloud  &  Wing case of.................................... 447
Cochran                vs.          Jones...................                                     256
Coffroth                "           Kountz.............................206
Colden                  "           Sharpe................................. 166
Colt                    "           Eves..................................                          88
Commonwealth"                       Aglar.................................. 475
" "                    Ayers........................... 481
" " Baxter..............................  221...      Bradford............................ 463
te" " Carrigues......... 295
"'           Clary........................... 29...                   Cluley............................233,   235...                   Commissioners, 115, 219, 290, 317, 322, 326, 329.... Ely..................................... 398
I " "                  Gray...........                            481
" " Hanley..........2.......................36'' " Jones....................................230
" "         4          Leach....................295,   390
"' "'                  Leary................................... 35.. ((                  Lee............................               35,  466...               Maxwell................................69.. ((                  McKloskey...........................2...67,, " Miller.................................   481.. "                   Read.............................445,   446. "  Shaw.................................. 459...                  Sheriff..................   35,   496..                    Shover....................                                     229.. "                   Silsbee.................................468.".                   Wallace.........................475...    Wallper........ 1401, 402
Conlin                 "           Aldrich.................................322
Covode                 "           Foster................... 42,                     62,   442,   443
Crosbie                "           Hurley.....3............08
Crowell                "           Lambert..............................                           221
Crawford'           Molitor............................... 382
Cummings               "           Missouri........................31,  32,   33
C.W.&Z. R. R. "                    Commissioners.........................152
D.
Daily                 vs.          Estabrook...................53, 80
Darrall                "           Bailey........................426




TABLE OF CASES CITED.                           435
SECTION.
Davies          vs.      McKerky................. 66
Davis "-                 McKeely........................... 336
Day " Kent........................... 128
DeCosta " Jones...........149
Delano                   Morgan...........................75, 76
Deming in re            -.........................74
Dickey                   Hulburt...................114,  135
Dishon                   Smith................ 84,  116,  148
Dodd ex parle.........................................237
Dodge                    Brooks............367
Doerflinger    "         Helmantel.............................315
Draper                   Johnson............23, 59, 75,  162,  163
Druliner                 State........................404
Duffy in re...............198
Duke                     Ashbee.......................192
E.
Earle case of.................................................. 242
Easton          vs.      Scott........................... 75
Edwards case of,.....................................244
Edwards         vs.      Knight................................  339
Eggleston " Strader...........................78
Elbin            "        Wilson.......................... 505
Ellis " County Commissioners.................. 327
Ellyson ex parle........................................379
Ensworth         "        Albin et al..............................9
Ewing          "          Filley............. 210, 289, 295, 390.. inThompson................... 209
F.
Farlee          vs.      Runk.....4...................... 4
First Parish,&c."        Stearns................................444
Flanders " Hahn...............................76, 448
Follett "                Delano......................358,  363,  394
Forsyth case of....250
Foster          vs.   Covode........214
Scarff.......................115, 136
Fouke            "        Trumbull...............................228
French " Lighty.................................71
Fry " Booth....................... 40
Fuller          "         Dawson...............................364...                   Kingsbury..............................173
G.
Garland exparte...............................................74
Ganod   vs.  State............ 266
Geebrick " State.................................152




436                  TABLE OF CASES CITED.
SECTION.
Gibbons          vs.       Sheppard..............282,  285
Steward......... 303
Giddings         *        Clark......86,  91,  302,  310, 312, 419
Gilliland         "       Schuyler..........................200,  273
Gilbert case of............................................202, 203
Gillespie        vs.       Palmer.................            496
Glascock          "        Lyons..........................  308
Goechens          "        Matthewson.................. 507
Goggin            "        Gilmer..................................91
Goodell           "        Baker........        122
Gooding           "       Wilson.......78,  93,  105,  277,  371,  440
Gorham            "        Campbell...............................128
Gotchens          "        Matheson.................                     68
Grafton case of...............................................447
Greenleaf        vs.       Low.................................. 79
Gregory           "        King........................150
Grier             "        Shackleford............ 332
Griffin           "        Rising.....................   27
Gulick            "        New................................. 233
Gunter            "        Willshire.........................394,  397
Guyon             "        Sage..18.......  168
H.
Hadley           vs.       City of Albany.......         93,  219
Hale              "   Evans...... 261
Hammond           "        Haines................................  153
i' " Herreck...............................242
Hamilton case of............................202
Hamilton         vs.       People..................................48
Hardenburgh    "          Farmers' and Merchants' Bank...........128
Harlan case of.............................. 165
Harris          vs.       Granville Whitcomb et al....2.........275
Harrison         "        Davis.................. 416, 417
Hartt             "       Harvey................. 93,  106,  221,  225
Harwood          "        Marshall...................322
Heath ex parte................82, 88, 286, 295, 325, 328
Henshaw          "        Foster................. 412, 495,  497
Hogan            "        Pile....................  100,  103
Hoge case of....................................................176
Hoge            vs.       Reed............................... 212
Howard          "i        Cooper........................75, 436,  438
Howard College"           Gore...............................44
Howard           "        Shields......................290
Huber            "        Reiley..........................  3, 18
Hulseman    "... Remp............    220, 318
Humphrey         "        Clingman................................275




'FABLE OF CASES CITED.                             437
SECTI ON.
Humphrey         "         Kingman...........................22,  494
Hunt             "         Chilcott............................... 224
"  "     Menard...................180
(" " Richards.......................    41
" " Sheldon............................426,  427
Hunter           "         Chandler.............210,  219,  308
Hurley " VanWagner......................147
Hyde            "         Malone........................,,433
I.
Ingersall        vs.       Berry................................... 340
J.
Jackson          vs.       Walker.................... 146,  147
" " Wayne.......................... 75,   76
Jefferies " Ankeney..............................496
Jenkins " Waldron.................... 496
Jenning " Reynolds.......................150
Johnson " Russell.................................150
Jones " State.............................128,  200
Judges opinion.............................................41
judkins " Hill...............................184,  441
Judson             "        Thatcher........................ 391,  392
K.
Karson case of.................................................. 267
Kellar            "        Chapman..........................28,  381
Kentucky election case of...............................223
Kerr             vs.       Trego.............208,  221,  509,  514,  515
Key               "        Vattier...................469
Keyser            "        McKisson................................79
Killiam " Ward................................... 495
King            "          Clark.............................. 325
((" " Hawkins.............................. 231
((" " Mayor of Colchester................322
" " Rees................................... 325."..        Winchester...................      322
Kirk                       R" hoades.................384,  403
Kister           "         Cameron et al...........3...337,  338
Kline             "        Myers............                      96
Kline             "        Verree................... 277,  353
Knauss case of..................................... 284,  288
Knowles   vs.   Yeates........... 114
Kneass case of............................................281,  282
Knox            vs.        Blair.........................354,  438, 449
Koontz                     Cofiroth......................214,  217,  364




438                 TABLE  OF  CASES  CITED.
L.
SECTION.
Lanman case of................................................ 257
Lansing       vs.      Lansing.................................150
Lawrence " Knight..................18
Lehman         "        McBride................................12
Lenning " Carpenter.. 191
Letcher " Moore................... 98, 181, 356, 357
Lincoln        "        Hapgood.................. 34, 40, 495, 497
Littell       R" obins.....................87, 181
Littlefield    "        Green........                 302, 456
Lombard         "       Oliver et al..........................,  504
Lord March    "         Pegot...................................149
Loyal           "       Myers......................   149
Loyal          "        Newton............................  355
Luce            "       Mayhew.............       2, 74
Lyon " Smith.......................     119
M.
Magee          vs.      Supervisors    3..............335
Malden case of................                                   44
Mallery        vs.      Merrill............................145, 166
Mann           "        Cassiday.....             285, 303,  316
Masbury    "   Madison....... 209
Marshall       "       Kerns...............................84, 115..                IKews....................................182
Mateson case of.................................................244
Mayfield      vs.      Moore.......................  308
Mayo " Freeland.............. 84
Mayor &c.    "         Rainwater...........................      332
Maxwell " Cannon...........527
McCafferty  "    Guyer.......5........
McDaniels case of..............................3...7, 36, 297, 298
McFarland    vs.       Culpepper............................... 75
McGregor       "       Balch...............................79
McGuire        "       State..475
McIllwe   ex parte..................................12
McIlvain      vs.       Christ Church of Reading......          319
McKay          "       Campbell........................12
McKenzie case of.................................447
McKinney    vs.        O'Connor,................. 128
McKinzie       "       Braxton................302, 312, 395, 400
McKinzie " Kitchen................................. 447
McKune        W" eller............................                120
Meachem        "       Dow.................................... 193
Mercer case of..................,244
Meyers        vs.      Moffatt.................................62




TABLE OF CASES CITED.                             439
SECTION.
Miller         vs.       English..........................115
t" " Lowery.................................. 318
"..                  Rucker..................................496
(("           "        Thompson........................... 39,  40
Monroe,,       Jackson.......................... 42
Moran " Rennaud.................................496
Morgan          "        Dudley..............................55,  496... "                  ~Quackenbush......................  83,  85
Morris           "        State................. 476
Morrison                  Springer.......................... 2,   113
Morton           "       Daily..........................53,  211,  212
Mott             "       Connolly................................308
"'       " c      Railroad.................................515
Mullikin   "   Fuller............... 76
Mumford case of.......................................243
Murphy ex parte............................269, 286
N.
Napier         vs.       Mayhew..................................404
Neff            "        Shanks.............404
Newcum          "        Kirtley............................. 383,  423
New Jersey case of.....................................218,  294
Newland        vs,       Graham...........................130,   278
Niblack         "        Walls...... 1..155,  158,  160,  351
Nichols         "        Mudgett......................192,  193
Norrie          "        Handley................3.......51,  369,  431
North White Hall vs. South White Hall..................90
Norwood case of...............................................201
0.
O'Farrell      vs.       Colby...............................84,  3'73
Oldknow         "        Wainwright................. 445
Oltero          "        Gallegos.........51,  344
P.
Page           vs.       Allen..................................6
cc"           "       Hardin.......................... 251,  255
Parker          "        Commonwealth............                       1.52
Patterson       "        Barlow.................................... 6
Paul Fearing case of.                                                    173
Peaney         vs.       Robins.................... 496
Pearce          "       State....................................480
Peck                    Weddell...................318,  340
People         "        Allen.................................... 88.. i'                Ammons.................................79
(    ".              Bates................................128,  133...                 Brenham...............                          135




440                 TABLE OF CASES CITED.
SECTION.
People        vs.      Canvassers...........189
((" " Cicote...........................    196,  390
cc"         "       Cicott............................301, 396
"     "    Clute.  ~~~~~..........2 33
((" " Common Council of Detroit................322
((" "               Cook.......79, 123, 140, 219, 392, 396, 410, 455
(1" " Corporation New York.... 322, 324
("',              Cowles....................135,  137
(" " Dutcher................................415
",,             Ferguson........................            396; " Forquer................................. 322
" " Gamer.................................183
"~' " Gordon............................95
" " Harris....................................475
";  " Hartwell...........................135, 139
e" " Head......................................83
~  ("   Hilliard.....    334, 335."..           Holden........ 40, 278,  291, 307, 316, 406
"~'         "       Jones.....................219, 307
" " Kilduff.........83, 401
(" " Kopplekam.........................10
" " Loomis...............................399
Love.................................. 410
((" " Martin..........121, 122, 139
c"          "       Matteson...............405
(<" " Mathewson...............................62
" " Maynard....................... 191
"           "       Miller.....................................221
c"          "       Mulvaney...............................295
" " Murray........                                                  114
"c' " Ohio Grove..........186
(("         "       Pease, 74, 194, 273, 292, 293, 308, 374, 413, 501
502, 396
Perkins.............    488
Porter..............................139, 260
Pratt...................................382
Regents of Univ.........................330
Riley...................................... 41
Rivers...................      334
Roseborough.........................39
Schermerhorn............................127
Seaman........................   396, 407
Sexton...................................410
Sloan.....................................188
Smith et al.............................. 490




TABLE OF CASES CITED.                             441
SECTION.
People         vs        Smythe................................. 308
it" "                Stevens................. 333
Supervisors of Greene....................322
("          "        Sweetman.................................56
"'         "        Tierman...................          308
" "                  Tisdale............................      396
"i          ",      Vail......................219,  286,  287,  290... "                Van Cleve........84
"'  "i    Van Slyck........82, 296...                -Warfield................................. 183
"           "         VWeller......                                   139
("'        "        Wiant............................... 183,  458
Perkins         "        Stevens...................................74
Petit           "        Rosseau..........                            308
Peyton   "   Brent....... 219
Phelps case of......... 172,  248
Phillips       vs.       Wickham.................     48
Pike            "        Magoun....................499
Potter          "        Robins.............................161,  257
Powers " Reed....................................291
Pradat                   Ramsay..................................393
Pritchett et al "         People..................................... 79
Putnam           "       Johnson...................................41
Queen           vs.       Derby........................... 322
Q.uinn           "        State................................65,  482
R.
Railroad Co.  vs.         Bears et al..............................414
it " Davidson..................       1............83
Rail             "        Potts...................................496
Ramsay'       Calaway......................... 93
Reed " Corden.................................. 170,, " Kneass............... 301,  386,  387
Reeder           "        Whitefield............................... 350
Regina           "        Coaks........................ 231
Reid             "        Julian.................... 78,  366,  386,  439
Renner           "        Bennett.................................78
Rex " Bissell................................... 231..                     Coe........2....................231,,,, Monday....................... 231,,,,       Parry.................................... 231
Reynolds         "        McKinney............................... 150
Rice           "          Foster..............................52,  267
Richards case of.................................................




442                        TABLE OF CASES CITED.
SECTION.
Ridley              vs          Sherbrook..;,.......................                      3
Risin                            Fair...... 72
Root                            Adams..............0167
Rump  "   Commonwealth....55
S.
Sasportas           Vs.          De La  Motta.0........................57
Saunders " Haynes............................    233
Schenck " Pray.................................... 237
Segar case of..................................................... 447
Sheafe              vs.          Tillman.'                 67,  213
Sheperd " Gibbons................................298
Sheridan " Pinchback.360
Sherlty   -           "          Howard.................................150
Shields case of............................................ 246
Shield               vs.         Thayer..................................111
Sibley case of......................... 173
Sinks                Vs          Reese............................... 29,  50
Skerret case of..........................,281
Sleeper              vs.         Rice...............................                       97
Sloan " Rawles....1........................08,  450
Smith                 "          Brown................232
" "        McMasters..............................150.. "                          New  York............................295
Turner................................. 54
Spaulding             "          Mead....................................145
" " Preston.................................192
Spragins                         Houghton..................43,  501
Sprague              "           Norway....................128
Stanton " Lane.................2...................38
State " Adams......................6,  47...           Albin...................................329;, "                          Anderson................        233': " Benedict                                      2.....................237.....Boal.................................... 233...           Boyett..................................475...           Burder.........................              446
"                  "    Cavers..................... 84
".. Churchill................... 221,  320...                          Cohoon...................... 483....    "(         Commissioners...........                333
""Daniels.496
",,      Donnewirth...........................                     80, "   Douglass..............474,   478,  480,, "                    Dunn...................................2,,,,          Dunniworth...........................  105




TABLE OF CASES CITED.                          443
SECTI ON.
State           vs.      Elwood.......................                 405
" "     Fitzgerald..............................295
c"  -  " Fitzpatrick............................. 484
" "   Frost....... 40
"         "     (       Funck..................................295
" " Gibbs....... 334
" " Giles...........................233
" "   Goetz.......                                 139
(<" " Goldwait............................... 405
" "     Governor.................. 83, 221
"c             " c     Harrison.............................84
" " Hart................. 475
~'?("  Harvey........333'~  c" Helmantel..........................0, 301.. "                   Jenkins....................... 237...      Johnson................................210
t(" Jones................ 83,  135, 139, 263.. " Judge &c.. 40
"      Leon.......................  63, 64
".. Macomber.................475, 490
cc"            "        Mathews........                           424
"              "       Mason..................................430
Mayor..    183
"' " McDonald.................490, 496
re" " Minnick........           470...       Moore................................. 479
(" "                   Morris.................................. 153
".  Murray...........................       258
" "     Noyes................................153."..                  Ohio......... 270, 301
<"             "   Olin.........273."..                 O'Neall................................153
"       Orris...................139
"   "   Parker..................  153
"    Perkins.......488
" "     Porter...................4.........90  496
"  "    Prichard...................... 255
"       Robb.............                    496  501
"c      Robinson.............................. 237
4 (" Rodman......................84  211  322
i" Sheeley..................... 473
""    Sherwvood...........221
" c     Smith................... 344  258  491  496
" "     Staten..............67
c" -  "Steers........................ 81  84  211.
"       Stumpf..................10  31




444                 TABLE OF CASES CITED.
SECTION.
State          vs.       Tierney...................405
" "     Symonds.............................       18
"i " c                Townsley...............................287
is " Tudor..................... 48
" "     Tweed..............................  479
("            ii       Williams......'.....          63  483  485
Steinwehr   "   State.......477
Stephens case of......................................55
Stewart    vs.   Foster..........43
" " Hoges...........2.................. 233
St. Joseph Tp   "        Rogers..................................183
St. Louis Co. Court vs.  Sparks....................79  322
Stockdale       vs.      Hansard.....................424
Stockton case of................................................. 267
Strasberger    vs.       Burk................................192
Strong in re..........................................334
Swift           vs.      Chamberlain.............49
Switzler " Anderson..               104 211
" " Dyer...................................11
Sykes            i       Spencer.................. 516  518
Sypher " St. Martin.............426
T.
Talbot   vs.  Dent.                                                 183
Tallaferro " Hungerford.............................352
Taney " Marshall................................228
Taylor " Griswold........48
"              "       Reading..4..2.............. 42
" " Taylor etal................79,  84, 128
Temple " Mead...............412, 413
Thompson Circuit Judge case of'...........................84
Thomas          vs.      Owens....,......... 72
- "           "       Ewing...6, 37, 50, 83, 280, 285, 303, 306, 443
Thurlow          "       Mass................................... 54
Todd                     Jayne....................354
Trigg            "       Preston..................................93."             "       Preston................................ 421
Trustees &c.    "        Gibbs.................................. 44
Tucker " Commonwealth...................114, 127
U.
Underwood       vs.      White................................. 322
United States    "        Addison...............................308
" "   Bullard.....................480
"         "       Clayton.................................99
Cruikshank..................16, 451, 453




TABLE OF CASES CITED.-EXPLANATORY.  445
SECTION.
United States  vs.       Louder................................453
It       " "      Petersbug Judges of Elections et al.......453
i " Quinn....................... 309, 434, 480
" " Vallayo.................................. 54
Upton case of............,......................................449
V.
Vallandigham   vs.       Campbell...................270, 344, 347
Van Ness case of..............................................238
VanValkenburgvs.         State................................ 469
Vischer.. Yates...  150
W.
Walcott case of....................424
Wallace        vs.      Simpson....................212, 393, 426
Washburn..              Ripley............................130, 131
Voorhies...............314, 365, 438, 439
Wattles                 People...............................  487
Weaver.. Given..................... 303
Weckerly        "        Guyer............................496, 497
Weeks           "        Ellis.............................79
Westbrook       "        Roseborough...........................2559
Whipley         "        McKune......................79
Whitney         "        Canique................................242
Williams        "        Mason............................3......57
"           "       Stein.....................413
"  "    Whiting..........................36
Williamson      "       Sickles................................. 349
Winthrop case of...............................................247
Wood           vs.      Fitzgerald................................ 74
Wright          "       Fuller.............................343, 344
Y.
Yulee          vs.      Mallory.................................164
EXPLANATORY.
"Cases of contested elections in Congress from 1789 to 1834 inclusive,
by "Clark and Hall," cited as "Cl. & H.," or as "Clark and Hall."
"Cases of contested elections in Congress from 1834 to 1865 inclusive,
compiled by D. W. Bartlett, clerk of the committee of elections," cited
as "1 Bartlett,"
"Cases of contested elections in the House of Representatives from
1865 to 1871 inclusive, compiled by D. W. Bartlett, clerk" &c., cited as
"2 Bartlett."








(THE REFERENCES ARE TO SECTIONS UNLESS OTHERWISE STATED.)
A.
AMENDMENT TO THE CONSTITUTION (Fifteenth)
a limitation on the power of the States to regulate suffrage   1,  2
renders null certain State laws, &c......................       2
AMENDMENT TO THE CONSTITUTION (Fourteenth)
power of Congress under................................        15
AMENDMENTS TO THE CONSTITUTION (recent)
power of Congress under................ 12, 13, 14, 452, 453, 454
AGE
as a qualification for voting......................         4
ABRIDGMENT
of constitutional qualifications of voter..................    6
ACT OF CONGRESS known as "ENFORCEMENT ACT"
its scope and purpose..................................        11
its application to laws of States not founded on distinction
of race &c.........1................ 12, 13
proof required to sustain indictment under...............     435
conflicting decisions as to its constitutionality....... 452, 453, 454
ACT OF CONGRESS
of March 3, 1865, in relation to deserters...............  18
applies only to persons duly convicted...................      18
ALIENS
parol proof that such have voted upon forged naturalization papers..........................................        21
naturalization generally necessary to qualify for voting...     54
cannot in general hold office...........................      258
may be elected to office but must be naturalized before qualifying..............................................        258
ASSESSORS
not liable for failure to tax unless they act wilfully........  27
ABSENCE
temporary, of voter from his home......................     34
447




448                         IN DE X.
ABODE, TEMPORARY
effect of votin  at place of..................................  34
ALMSHOUSE
when residence of pauper...........................        42
ANNEXATION OF FOREIGN TERRITORY
effect of upon the citizens thereof......................     51
of foreign state, effect upon the citizens thereof..........   151
ARREST
privilege from, of voter................................        49
APPLICATION FOR NATURALIZATION
must be made in open court...........................           5
ACTS OFFICIAL
of election officers defacto, valid..................... 75 to 79
of canvassing and returning officers when prima facie correct................................................   87
time of performance, when not material..........               88
ADJOURNMENT OF ELECTION
when valid....................            91
necessity of, who shall be the judge of.................        91
by sheriff under statute for three days...............         162
ADMISSION
of voter as to his naturalization.........................      95
AMENDMENT
of record of vote......................................  107
of pleadings in contested election cases.................     284
must be made without delay............................         285
AUTHORITIES
to show the effect of irregularities in the conduct of an
election.............................................          128
AGREEMENT
to "pair off" between voters, void.......................      193
ACT OF CONGRESS
regulating election of U. S. Senators....................      201
(See appendix page 413.)
concerning Presidential elections,............... (appendix p. 421.)
ACCEPTANCE OF OFFICE UNDER U. S.
by member of Congress............................ 240, 241, 242
vacates office previously held, when.....................      243
ABANDONMENT
of an office, what is....................................  253
APPOINTMENT
of messenger to deliver statement of votes to clerk, need
not be in writing....................................   296




INDEX.                                 449
ANSWER
to notice of contest under act of Congress, how served...         394
ARMED TROOPS
not to be brought to place of election unless to repel enemies, &c,............................... (appendix, p. 406.)
when their presence vitiates poll...........418.  419, 420, 421, 422
B.
BARNES vs. ADAMS
case of................................................ 77, 78
BOARD
of certifying officers, when all must sign certificate.......     98
of returning officers cannot stop with a partial canvass...        98
of election officers, power ends with their final adjournment.....    105
of certifying officers, certificate of, must be signed by
majority at least.......................................      158
but must be based upon a full canvass...........      209
BETTING
on result of an election, illegal........................        149
BALLOTS
imperfect (see chapter seven) when deposited are beyond
control of election officers.............................      106
deposited by mistake in wrong box.....................           130
preservation of, to be used in evidence..................        277
conflict between ballots and the returns.................       278
recount of, often unsafe................................         279
recount under statute, when ordered....................   280
identity must be clearly shown........................           280
loss of in one, out of many precincts....................  286
original as evidence.................................. 279, 291
marked by officers of election..........................         312
as evidence, Judge Cooley's views......................          388
presumption in their favor, how overcome..............      393
BRIBERY OF VOTER
not an infamous crime in New York....................            229
BALLOT BOXES
effect of a disregard of statute requiring two to be kept at
each poll................................       159
BALLOT
reasons for adopting....................................    194
secrecy of.............................................     194
voter cannot be compelled to disclose contents of........        195
person discovering contents of by trick or artifice must          195
not disclose........................................           195
illegal voter, must disclose contents of..................       196
29




450                             IN D EX.
BALLOTS, IMPERFECT (see chap. seven)
when to be counted....................................      123
when evidence aliunde received to explain........... 395, 396, 397
containing two names for same office bad as to that office
only................................................               398
containing three names, when but two are to be chosen,
or the like..........................................               399
distinguishing marks upon ballot.......................               400
statute requiring white paper to be used.................             401
what statutes of this kind are mandatory................ 401, 402
voter responsible for what is under his control...........            403
what are "distinguishing marks"........................        404
statute requiring name of office to be endorsed..........             405
description applicable to two offices.....................            405
containing a smaller number of names than are to be chosen.................................................          406
evidence aliunde for what purpose admissible............              407
writing ofi ballot prevails over print.................... 408, 409
courts may hear evidence aliunde when canvassers may
not.................................................                410
placing "paster" over name on ballot.................... 410
not necessary that name should be obliterated in order to
be stricken off.......................................              411
printed ballots equivalent to written.....................         412
form  of ballot must be substantially as required by statute           414
statute requiring all ballots to be numbered so as to destroy
secrecy held void...................................  413
mode of conducting an election when no mode is prescribed..........................................                  415
BRIBERY
of an elector.........................................        432
C.
CONSTITUTIONAL
power of Congress over suffrage, extent of..............   1,   2
amendments (recent) power of Congress under....15,  16,  18,  19
privilege of voting, how waived.........................               48
convention, power of to fix place of electing Representatives in Congress............................109,  110,  111
power to fix time of electing State officers...11.........      112
CONSTITUTION ALITY
of registry laws.....................................             7,   8
of enforcement act of Congress...................452,  453,  454
CITIZENSHIP
a qualification for voting...............................               4
a qualification for office................................            258
but an alien may be elected...............................            258
certificate of naturalization, prima facie evidence of.......          35




IN DE X.                               451
CHANGE OF RESIDENCE
what constitutes.......................................           36
COLLEGE
student in, place of residence...........................41
CASTING VOTE
when it may be given by returning officer..............           47
State cannot authorize governor and council to give in
election for Representative in Congress...............         170
CAPACITY
mental required of a voter.............................           50
to read and write required in Mass......................          73
to read required in Conn...............................          73
CORPORATE ELECTIONS
voting by proxy......................................             48
CONGRESS
has power to regulate federal elections.............              17
has exclusive power over naturalization.................          54
power of, under recent amendments to protect citizens in
right to vote &c..................12,  13,  14, 452,  453, 454
act of, relating to election of U. S, Senators (see appendix
page 413).................................               201
member of, vacates his seat by accepting incompatible
office....................................... 240, 241, 242
member of, elect, before qualifying may hold disqualifying
office...............................................          241
may provide for punishment of frauds perpetrated at federal elections........,.......................         309
lower house not bound by statute regulating proceedings
in contested election cases............................ 348, 349
nor by technical rules..................................         349
said statute directory only.............................         349
but will be followed as a rule...........................        349
house may on its own motion investigate a member's election............................................       350
CERTIFICATE OF NATURALIZATION
when issued by clerk without order of court void.......           56
voter cannot in general be required to produce at polls....        95
fraudulent may be set aside upon parol proof before court          21
prima facie evidence of citizenship......................         35
officers of election cannot hear proof to set aside.........      35
but may act upon an admission of party holding, which if
true, makes it void..................................          95
CRIME
what crimes are infamous.............................. 20
disfranchisement as a punishment for...................           19




452                          INDEX.
COLOR OF AUTHORITY-(Continued)
conviction of, when it vacates office.....................      255
conviction of infamous crime........2....2...........           229
when record of conviction must be produced to prevent
criminal from voting.................................          68
COLOR OF AUTHORITY
an officer of election must have......................           80
CANVASSING OFFICERS
their duties chiefly ministerial..............81,  82,  83, 84, 85
may possess enlarged powers under statute..............          86
presumption in favor of acts of.........................         87
majority of, may certify upon a full canvass.............       206
effect of omitting from canvass a part of the vote........      217
their decision not to be reviewed in mandamus case collaterally................333
CLASS OF VOTERS
affected by a decision of election board..................       89
CERTIFICATE OF ELECTION; CREDENTIALS;
COMMISSION
the making of false, punished..........................          99
surplussage in,..................................              104
refusal of officer to issue..............................       171
must not be disregarded in the organization of legislative
body..                                                        204
form of...............................................          205
of Representative in Congress..........................., 207, 208
what it must contain................2..................        208
confers a vested right................................         209
conflicting credentials......................                 211
how set aside........................................  210, 221
cannot be revoked.........................        209
cases where neither claimant for seat in house of representatives holds....................................... 214, 215
necessary to admit a person to office in advance of investigation......................................                  215
house of representatives will not in prima facie case look
behind......................................           216
but will consider all that appears in certificate........... 216, 217
conclusiveness of......................................         219
equity will not enjoin use of by holder..................  220
does not fix term of office..............................       261
prima facie evidence only.....................           287
effect of, when issued under mandate................. 334, 335, 337
mandamus will not in general lie to compel issuance to a
particular person.................................... 338




IND EX,.                            453
CITIZEN
not synonymous with inhabitant................43, 44, 45
CERTIFYING OFFICERS
must follow statute...................................      104
effect of surplussage in their certificate..................  104
CHANGE OF TIME OR PLACE
generally fatal to election...............114, 115
by vote of town meeting....................     122
CLOSING POLLS
at improper time.......................................     114
closing and opening polls-rules concerning.............     142
CONTRACTS
tending to influence voters void......................... 146, 147
to provide liquors-to influence voters-void...........      192
against public policy.........         192
to aid a candidate when void............................    193
to "pair off" between voters void......................     193
CONTENTS OF BALLOT
how proven.................................. 194, 195, 196, 293
CONTEST
required to set aside commission........................    210
cases of, in house of representatives U. S...............
rules governing pleading and practice in..............    394
COUNTY SEAT REMOVAL
offering facilities to the public to influence voters........  148
COUNTY
cannot be organized without giving its citizens suffrage and
representation...................................         191
CONGRESSIONAL DISTRICT
change of, after an election and before vacancy..........   179
the district which elects must fill vacancy...............  180
CORRUPTION
at primary or nominating conventions or election........    192
CLAIMANT FOR OFFICE
bound by evidence offered by him outside of his certificate
of election........................................       224
CONTESTED ELECTION CASES
practice and evidence in (see chap. six) pleading in under,
act of Congress..................................... 339, 394
COMMON LAW REMEDY
against the incumbent of an office by quo warranto......     264
CENSUS
official report of, as evidence....................... 351, 355




454                         INDEX.
COMPROMISE
between claimants for office whether it binds constituency
quere..............................................         169
D.
DESERTION
act of Congress in relation to..........................       18
DISFRANCHISEMENT
as a punishment for crime.............................        19
DOMICILE
synonymous with residence.............................   39
of unmarried person...................................        71
meaning of, discussed (appendix)........................ page 425
DEFACTO OFFICERS OF ELECTION
their acts valid.................................75, 76, 77, 78, 79
DISSOLUTION
of election board ends its authority......................    105
DIRECTORY
what statutory provisions are...................88, 126, 127, 200
DELEGATION
of legislative power to the people......................      152
DISTRICT-CONGRESSIONAL
change of, after election and before vacancy............. 179, 180
DISCLOSURE
of contents of ballot cannot be compelled...............      195
except-when cast illegally..............................      196
DISREGARD OF LAW
when fatal to election..................................      199
DISLOYALTY
of member of Congress elect...........................        223
DISQUALIFYING OFFICE
acceptance of, vacates previous office...................     218
DEPUTIES
ministerial officers may appoint.........................     252
DUELING
as a disqualification for office, and when conviction is required...............................................       256
DECLARATIONS OF PERSONS WHO HAVE VOTED
ILLEGALLY
rule in England, admits them as evidence................      270
conflict of authority in United States.................       270
soundness of English rule doubted......................       271
illegal voters required to testify as to how they voted......  272
excluded in Kansas...................................        273




IN DEX.                                   455
DEPOSITIONS
when and how taken in contested election cases in Congress................................................                394
DISTINGUISHING MARKS UPON BALLOT
what are.............................................                  404
E
ELECTIONS
federal, governed by State law..........................                 1
for representatives in Congress, power of Congress to regulate......................................... 17,  143
held within military reservations in territory, valid.......             30
district defined..........................................        46
special, who may vote at.................................               63
power of legislature to regulate, extent of................              69
officers of, their qualifications, powers and duties,
(see chap. 2)
district, division of.....................................               90
adjournment of; when valid.............................                  91
certificate of election, may be issued after time named in
statute...............................................                88
must be based on full canvass...........................                98
officer of, liable under act of Congress for issuing false
certificate..........................................                 99
governor of state not an officer of, under statute..........              99
board, cannot re-organize after a final adjournment........              105
no power over ballot after it is deposited in box...........           106
for representative in Congress, place of..............109, 110, 111
time, place and manner of holding elections (see chap. 3)
of state officers, time and place..........................            112
changing time or place, effect of......................... 114,  122
notice of elections.....................116,  117, 118, 119
notice of special elections............................ 120
statutory regulations necessary.......................                  121
irregularities in conducting................ 124, 125, 126, 127, 128
erroneous decision by officers of..........................             134
election of representatives in Congress by state at large in
violation of act of Congress........................  143, 144
use of money to influence......................... 146, 147
wager as to result of, illegal............'.....149
of U. S. Senator cannot be reconsidered by legislature....              161
adjournment of, by sheriff, for three days, under statute...             162
legislature may adopt rules concerning election of U. S.
senators.............................                                164
both houses must participate in such an election in their
organized capacity...................................                165
officers of elections, errors of, when and how corrected..... 167 168




456                         IN DEX.
ELECTIONS (Continued)
certificate of, refusal of officer to give...................  171
of representatives in Congress in anticipation of admission
of new state...........................                     172
to fill vacancy, power of governor.......................    176
of representatives in congress, power of military governor    178
when proof leaves, result of, in doubt..................     182
when to be held at time of general election...............    187
when to be held on a day certain........................     188
contracts to influence, void...............................  193
a plurality of votes generally sufficient..................    197
certificate of, how far conclusive........................   219
certificate of, how set aside..............................   221
election of alien as U. S. senator, void...................  246
must be authorized by law..............................      262
legal voters cannot safely decline to vote because illegal
votes are received................................         444
votes must be cast in manner provided by law............     446
those who may, and no not, vote bound by result......... 445 446
where the great body of voters have no opportunity to
vote, the election void.447
in what cases those who attend and vote have the right to
decide...........                          448
when legal vote can be ascertained and counted, in spite of
frauds...............................................       456
in what cases equity will relieve against frauds............    458
effect of rejection of part of the polls for violence or intimidation.............................................425 to 429
ELECTIVE FRANCHISE
laws of the United States concerning the, (see appendix) page 405
ENFORCEMENT ACT OF CONGRESS
conflicting decisions as to its validity.............451 452 453 454
proof required, to sustain an indictment under............   434
EXECUTIVE OFFICER
not to consider questions of fraud......................     213
EQUITY
will not enjoin use of certificate of election by the holder.  220
when it will relieve against election fraud................    458
ELECTION OFFICERS; THEIR CIVIL LIABILITY
FOR MISCONDUCT IN OFFICE (chapter 11)
liable in damages for wilful and corrupt refusal to allow a
citizen to vote &c................................    494
proof of malice generally required........ 494 495 496 497 498 500
their duties generally clearly defined by statute........  501
have in general little discretion.........................  501




IND EX.                                457
ELECTION  OFFICERS, &c., (Continued)
where voter offers to take the statutory oath, his vote must
in general be received................. 501 502
but if officers believe him disqualified, they may refuse vote
notwithstanding oath, if they can prove the oath false...       501
voter must ascertain after close of registry list whether
his name is omitted...................................         503
statements of voter as to his residence....................      504
exemplary damages when officers liable for.............          505
proof that officers knew the voter differed from them in
politics...............................................        506
presumption where question decided is difficult or doubt,
ful....................................................         507
board of, cannot reorganize after final adjournment.......        94
adoption by them of erroneous rule affecting the right of a
class of persons to vote...............................         89
ELECTORS
qualifications of (see chap. one)
ELECTIVE FRANCHISE
rules for the orderly exercise of.........         6
EVIDENCE OF CITIZENSHIP
what can be required of voter at the polls................        35
EXECUTIVE PARDON
restores right to vote..................................        74
ELIGIBILITY TO OFFICE, AND TENURE (see chap. 5)
qualifications, how fixed...................2............        226
for representatives in congress..........................      227
residence in a particular part of district cannot be required     227
state cannot. add to qualifications of representatives in
congress..........................................             228
conviction of an infamous crime.......................           229
bribery of voter not an infamous crime under law of New
York..................................        229
residence as a qualification for office.....................     230
where residence of office holder is presumed to be........       230
effect of casting a majority of votes for an ineligible candidate....................................1 232 233 234 235
in what cases office becomes vacant at end of term......         236
appointment to fill vacancy.............................         237
acceptance by member of congress of disqualifying office.         238
holding two offices at once.............................        239
holding an office "under the United States"..............        240
a commission in the army..............................           240
member of congress elect may hold incompatible office.... 241 242
acceptance of seat in congress vacates office previously
held.................................................          243




458                           IN DE X.
ELIGIBILITY TO OFFICE, &c., (Continued)
how member of congress may resign.............                  244
residence and citizenship as a qualification for office.......    245
qualifications of senators in congress............            246
tenure of office of senator in congress under appointment. 247 248
who an inhabitant of the state so as to be a member of
congress............................................            249
foreign minister an inhabitant of his state................      250
power to fill, does not imply power to create, a vacancy...       251
governor cannot conclusively determine that vacancy exists.................................................          251
what officers may appoint deputies.......................        252
legislature cannot change constitutional qualification......      252
abandonment of an office...............................          253
officer appointed during good behavior, how removed.....          254
conviction of crime, when it vacates office...............        255
dueling as a disqualification for office....................     256
vacancy cannot be anticipated by appointing power.......          257
alien not eligible to hold office, but may be elected........    258
election must be for full term...........................        259
the right of resignation..................................   260
term, not affected by death of incumbent.................        261
judicial declaration of-vacancy not necessary.............        263
executive declaration of;, not conclusive..................      263
EVIDENCE IN CONTESTED ELECTION CASES (see
chap. 6)
certificate of election only prima facie..........           287
parol evidence to impeach return.......................          290
tally papers admissible as..............................         291
original ballots when admissible.............. 277 2'78 291 388 393
when poll list admissible................................      292
circumstantial, as to how a voter voted..................        293
presumption that a foreigner who votes is naturalized.            294
how such presumption is overcome................                294
ordinary rules, apply in election cases..................        306
extension of time for taking testimony when granted to
sitting member of congress...........................   310
showing required to procure such extensioh............... 310 311
to explain imperfect ballots when received........395 396;97 407
what required to set aside return........................       440
what evidence is admissible to show for whom illegal
yotes were cast........................... 270 271 272 273 293
return not signed proves nothing........................         274
list of voters, when admissible..........................        275
registry list as evidence.................................       275
conflict between return and ballots......................        278




INDEX.                                     459
EVIDENCE IN CONTESTED ELECTION CASES(Continued)
proof of recount of ballots............. 279 280
return may be impeached...................        290
tally papers as evidence.............................291 363 380
poll list as evidence............................      292
proof to rebut presumption that a foreigner who votes, is
naturalized.................................             294
appointment of messenger to deliver statement of vote,
how proved..........................................                  296
illegal voter, not protected by the secret ballot............ 297 301
party having proof must produce it......................               300
legal voter may waive privilege and testify for whom he
voted.........................................                301
proof required to exclude an entire poll...........   303 304
census, of population as evidence..................... 351 352 355
land list as evidence................................... 352 355
testimony taken out of time in a contest in congress......               354
proof that persons have voted who are unknown in the
precinct....................................'    356
record evidence, how produced in a contested election case
in congress.......................................... 362
what proof will vitiate a return..........................       365
state law fixing rule of evidence not binding in congress..               369
what is sufficient proof of illegality of vote...............            371
residence, how proven..............................3...                  371
weight to be given to decision of board admitting a vote...               372
F.
FRAUD
in naturalization, proved by parol........................  21 457
cannot be investigated by canvassing or executive officers.  83 213
fraudulent refusal to fix suitable voting places............             101
of election officers......................1................ 184 185
upon federal election may be punished under act of congress.................................................  309
in elections, remedy for............................... 340 458
policy of the law to facilitate investigation of.............            387
vitiates return whether officers of election participated in
it or not.............................................                 392
FRAUD AND ILLEGAL VOTING (see chap. 9)
return may be impeached for fraud......................                  436
effect upon the poll of rejection of return..........         437
dangers attending application of the rule upon this subject               438
parol proof to impeach return..........................                  439
what proof sufficient....................................                440
what frauds are fatal to return.........................                 441
distinction between fraud by officers and by other persons.               441




460                        I N D EX.
FRAUD AND ILLEGAL VOTING (Continued)
what misconduct of officers fatal to return...............  442
allowing unauthorized persons in room with officers......    443
legal voters cannot safely decline to vote because illegal
votes are received..................................      444
those who may, and do not vote, bound by result......... 445 446
votes must be cast in manner provided by law..........      446
where the great body of voters have, no opportunity to
vote, election void...................................    447
in what cases, those who attend and vote have the right to
decide.......................................            448
circumstances tending to show fraud..................... 449 450
punishment of, under act of congress...................     451
conflicting decisions as to validity of the "enforcement act"
of congress....................................,452 453 454
what acts of election officers will constitute fraud..........    455
when legal vote can be ascertained and counted........... 456
when equity will relieve against election frauds........... 458
fraud committed by officers of election..................   441
fraudulent naturalization confers no right................    457
FAMILY
removal of voter with....................3.........         36
residence of...........................................      40
FORMAL NOTICE OF ELECTION
when required......................................116 117 118
FOREIGN STATE
effect of annexation upon its citizens....................   151
FIFTEENTH AMENDMENT, TO CONSTITUTION
effect of on state laws regulating suffrage................   1   2
FEDERAL OFFICE
qualifications for, how fixed.............................  226
FOREIGN MINISTER
remains an inhabitant of his own country................   250
FEES AND EMOLUMENTS
when to be recovered by successful contestant............    308
FEDERAL AUTHORITIES
will follow state in construing state laws...........       313
G.
GUARDIANSHIP
persons under may not vote in some states...............     73
GOVERNOR OF STATE
not an election officer within meaning of act of congress..   99
may certify to election of representatives in congress.....    207
powers and duties under election laws.....................   213




INDEX.                                  461
GOVERNOR OF STATE (Continued)
cannot create a vacancy in office'and fill it without specific
authority.5..................................                     251
may declare a vacancy in an office........................          263
but such declaration not conclusive......................           263
may be required to answer in -quo warranto and defend his
title.................................................       389
GENERAL ELECTION
effect of statute fixing, as the time for choosing certain
officers......................................  187
H
HOME
temporary absence of voter from........................      34
no person can have more than one, at same time.........              40
HEAD OF FAMILY
when unmarried person may be........................   59
HOUSE OF REPRESENTATIVES U. S.
will not in prima facie case look behind certificate of election.................................................  216
but will consider all that appears therein.................. 216 217
erroneous rule followed by, in a few cases................ 211 212
but not adhered to.......................................           212
credentials required to establish right to seat prima facie..        208
practice in contested election cases in, conformed to state
laws..............................................              342
requisites of notice of contest under act of congress....... 343 394
need not name illegal voters.............................     346
primary returns may be sent for..........................    345
sitting member must use diligence in preparing for trial...         347
act of congress to regulate the taking of testimony not
binding upon.......8.................................. 348 349
not bound by technical rules............................  349
statute directory only....................................         349
but is followed as a convenient rule.....................           349
may upon its own motion inquire as to the due election of
a member............................     50
rules governing pleading and practice in contested election
cases in............................................             394
statute relating to election of members of (appendix)...... page 414
statute concerning contested elections in (appendix)...... page 416
HUNT vs. CHILCOTT
case of................2........        224
I.
INFAMOUS CRIMES
what are...........................        20




462                          IND EX.
INFAMOUS CRIMES (Continued)
conviction of.........................................         229
when conviction vacates office held by offender.......        255
IDIOTS
cannot vote.............................   4.50
but an enfeebled intellect may not disqualify.............      50
they as well as lunatics disqualified at common law.......       73
INTENTION TO REMAIN
a test of residence.....................................        38
how proved...........................................           71
INHABITANT
not synonymous with citizen.......................... 43  44  45
of an nexed territory....................................       51
meaning of, as applied to qualifications of members of congress................................................        249
a foreign minister is an inhabitant of the state........    250
inhabitants of an indian reservation.............. 52  53
ILLEGAL VOTERS
who are presumed to be.................................         62
must disclose for whom they vote.......................        196
not protected by the secret ballot.........................    297
by whom called as witnesses........................    300
cannot be compelled to disclose his ballot until it is shown
to be illegal...............................        301
may decline to answer on ground that to do so would criminate him.........................................         301
names of, need not be given in petition...................      315
ILLEGAL VOTES
when it does not appear for whom they were cast, how
treated........................................... 99     300
treated..., 298 299 300
party having proof within his reach as to how such votes
were cast, must produce it...........................        300
that such were cast will not vitiate election if they do not
change result.......................................  444
votes not cast according to law.........................      446
ILLEGAL VOTING
see fraud and illegal voting (chap. 9)
INJUNCTION
will not lie to restrain the counting of votes because of fraud  318
but will lie to restrain election officers from receiving illegal votes............................................        319
will not lie to restrain recording of abstract of vote because
of fraud.....                                                 340
of fraud...........................................         340
will not lie to restrain the use of certificate of election by
holder..............................................         220




INDEX.                                 463
INVESTIGATION OF ELECTION FRAUDS
policy of the law to encourage..........................         387
IMPEACHMENT OF RETURN
effect of...............................................         156
INFLUENCING VOTERS
contract for, void......................................         192
IRREGULARITIES
in the conduct of elections.............................122 to 129
INELIGIBLE CANDIDATE
effect of votes cast for................................. 231 to 235
ILLINOIS, CONSTITUTION
provisions relating to qualifications of members of congress,
void.............................................. 228
INCOMPATIBLE OFFICES
what are..............................................           238
INTEREST
what will disqualify member of legislative body for voting 267 268
INDICTMENT FOR VIOLATION OF ELECTION LAWS
not necessary under, to prove that the officers of the election were duly chosen................................          459
nor to allege that the district is in the state................  460
nor that the election was by a meeting of the electors.....      461
variance between allegation and proof...................         462
what is wilful voting.................................     463
burden upon the state to prove non residence of voter....        464
advice of counsel as to right to vote admissible...........      465
but not advice of a "friend"..............................       473
officer not Liable for a mistake of judgment............... 466
nature of question decided to be considered............... 467
indictment at common law for double voting and election
frauds.............................................. 468 469
for voting out of township..............................         470
not necessary to state what officers were to be chosen at the
election      o............................................. 471
circumstances showing want of bona fide residence of voter..................................................          472
not necessary to aver that election was held by proper officers...............................................            474
as to necessity of charging that the voter knew of his disqualification when he voted........ 475 476 479 490 491 492 493
when the offense of illegal voting is complete.........         477
necessary to allege wherein the voter was disqualified..478 479 480
not always enough to use language of the statute..478 480 481 482
Inspectors, judges and clerks cannot be joined............       481
irregularities in the election no defense.................      483




464                         INDEX.
INDICTMENT FOR VIOLATION OF ELECTION LAWS
(Continued)
must charge and specify place of voting................      484
when want of legal notice of election is a defense......... 485
indictment for voting after conviction of infamous crime,
minority of criminal...................................    486
IMPERFECT BALLOTS (chap. seven)
incorrect spelling of candidate's name &c.................   395
insufficient designation of office.........................  395
under what circumstances evidence aliunde is admissible to
explain..............   396 397
containing two names for one and the same office......... 398 405
containing more names than there are officers to be chosen 399 405
statutes prohibiting the marking of ballots...............   400
requiring white paper to be used.........            401
distinguishing marks, when rejected for.................    401
what are distinguishing marks......................... 404
reasons for regarding such statutes as mandatory.........    402
distinction between things that are, and those that are not,
under voters control..................................     403
statute requiring name of officer to be endorsed, is directory    405
description applicable to two offices......................    405
name of candidate and office repeated..        406
ballot containing a smaller number of names than are to be
chosen................................4.............       406
evidence aliunde not admissible to contradict ballot &c....    407
writing on ballot prevails over print..................... 408 409
courts may hear evidence when canvassers may not......       410
placing a "paster" over name...........................      410
what will suffice as an erasure of name...............    411
printed ballots equivalent to written ballots..............  412
numbering ballots held unconstitutional.................     4.13
substantial compliance with statute as to form of ballot
sufficient...............................    414
conduct of an election in the absence of statutory regulations..............................................    415
INTIMIDATION AND VIOLENCE (chap. eight)
secret ballot intended to prevent..................1.....     94
what will vitiate an election............................ 416 417
armed troops at or near polls..............       418
when their presence and conduct will vitiate an
election...................................... 419 420 421 422
charges of intimidation should be heard...................    423
may be considered by lower house of congress, without
formal allegations...................................      424
rule where part of the precincts are rejected for..........    425




I N DT  E X.                        465
INTIMIDATION AND VIOLENCE (Continued)
effect of, in some of the precincts, but not in all 425 426 427 428 429
what must be alleged in petition charging intimidation....    430
testimony of persons intimidated should be produced.......   431
bribery of an elector..............................    432
indictment under enforcement act of congress, proof required...434
J.
JUDUJES OF ELECTION
what proof they may hear as to citizenship of voter....
(see officers of election)
JURISDICTION
over place of voters residence........................    70
of legislative bodies over the election of their own members,
when exclusive............................    295
of courts in quo warranto not ousted by law allowing any
citizen to contest...................                     307
courts of equity will not interfere by injunction to restrain
canvass of vote &c...................................    318
in what special cases courts of equity may exercise........    458
of courts of common law in proceedings by quo warranto.      264
proceedings in nature of quo warranto or statutory, the
proper remedy for testing the legality of an election.....    320
equity will not enjoin the recording of the abstract of the
vote of a county upon question of county seat removal.    340
remedy for frauds at an election.................340 note (f.)
JUDICIAL POWER
does not belong to canvassing boards...84......              84
JUDGE
no man shall be, in his own case.....................,     267
JURY TRIAL
when refused in case of contested election..2.........    288
constitutionality of act dispensing with..............     289
L.
LAWS OF THE STATES
regulate suffrage......................................       1
followed in federal elections.........................       1
must conform to 15th amendment of constitution.....         2
cannot add to constitutional qualifications................   5
providing for registration, constitutional......... 6  7  8
may prescribe questions to be answered by voter......        64
may fix place of holding elections for representatives in
congress..........................           109
how far legialature is controlled by state constitution in
fixing such place.                                         110
30




466                           I N DE X.
LEGISLATURE OF A STATE
its power as to fixing place of federal election........... 109 110
cannot reconsider its election of U. S. Senator............       161
may adopt rules to regulate election of U. S. Senators.....        164
cannot add to constitutional qualifications for office........    252
rival bodies each claiming to be...............162 514 515 516 5 17
LUNATICS
not qualified to vote................................              4
and idiots disqualified by common law...................           73
LEGISLATIVE POWER
cannot be delegated....................................         152
LOCAL OPTION LAWS
validity of.....................................        153
LIFE TENURE
acceptance of office for life implies an intention to reside
where duties are to be performed....................          230
LIST OF VOTERS
when an official document..............................            275
LEGISLATIVE BODIES
their organization, powers &c. (see chap. 12)
consequences of failure to organize......................         508
who may participate in organization......................         509
temporary organization...............................             510
statutes regulating....................................          511
cannot consider moral character of applicant for seat......       528
organization of house of representative U. S.............         511
(and see appendix)............................... page 415
no regular business done until permanent organization..         512
difficulty of organizing in certain cases...................      513
division into two bodies, which to be recognized.........        514
remedy against a usurping body........................           515
election of Senator in Congress by one branch of a divided
legislature...................5........................      516
case of Sykes vs. Spencer considered.....5.............. 516 517
under what circumstances an election of U. S. Senator by
a body composed of persons, some of whom-had no credentials, may be held valid............................ 517
Sykes vs. Spencer not in conflict with well settled rules..       518
power of legislative body to preserve decorum and prevent
and punish a breach thereof, &c.......................         519
who may complain of a member for disorderly conduct
and how..............................................         520
power of two houses of Congress over their members....            521
may a member be punished or expelled for acts done prior
to his election.............................5........ 521 522 523




IN D EX.                            467
LEGISLATIVE BODIES (Continued)
power to punish for contempt...........................    524
power to hold in confinement recusant witness...........     24
these powers belong to legislative bodies generally.......  525
the same act may be both a contempt and a misdemeanor..    526
houses of congress not deprived of these powers by act of
Congress of 24Jan. 1875.............................    526
power to punish persons not members for contempt, from
whence derived.............................             527
M.
MILITARY RESERVATION IN TERRITORY
persons residing within may vote.......................      30
election held within valid...............................    30
MILITARY POST
soldier stationed at, cannot acquire a residence.........  41
MILITARY GOVERNOR
power of as to elections.................................    178
MENTAL CAPACITY OF VOTER
test of................           50
MANNER OF HOLDING ELECTIONS
see time, place and manner &c., (chap. 3)
for representatives in Congress, power of Congress to regulate................................................ 17 309
MONEY
use of, to influence voters....................  146 147
MISTAKES OF ELECTION OFFICERS
when and how corrected................................ 167 168
MAJORITY
when required to elect............      197
of voters of a county, meaning of.......................    183
for ineligible candidate..................... 231 232 233 234 235
MEMBER OF CONGRESS
cannot accept an office under U. S. without vacating his seat 241 242
member elect may hold disqualifying office...............    241
MINISTER rTO FOREIGN COURT
remains an inhabitant of his state.......................    250
MANDATORY STATUTES
what are, and what are not......................114 126 127 200
MANDAMUS
not proper remedy to recover office......................    317
will lie to compel certificate to issue in accordance with
judgment of court....................................    320
will lie to compel board to declare result.................  321




468                          IN D EX.
MANDAMUS (Continued)
will only be granted where there is no other adequate
remedy..3............................  322 323
cannot be resorted to to dispossess defacto officer..........   324
may be issued to compel proper officer to swear in person
elected3 25
elected..............................................
will not lie to settle disputed title..3..................     26
must not be substituted for quo warranto...............        327
will lie to compel election officers to perform certain ministerial duties.....................,     328
also to compel obedience to judgment of ouster...........   320 329
also to compel an appointment to office..................  330
will lie to compel the performance of ministerial duties...    331
may compel, but not control, the exercise of discretionary
powers..................................         331 332
decision of canvassing officers will not be collaterally reviewed in mandamus proceedings......................    333
will not lie to control board in deciding certain questions.   333
effect of granting to compel issuing of commission. 33....4 335 337
will lie to compel registration of legal voter...............  336
also to compel a declaration of result of election.......       337
general rules as to mandamus proceedings in election cases      338
will not in general lie to compel issuing of commission to
a particular person by name..........................        337
MARSHALLS
their duties under enforcement acts of Congress (appendix) p. 410
MARKING BALLOTS
in violation of law..................................400 401 402
N.
NATURALIZATION
fraudulent, shown by parol...,...................... 21 457
certificate of, prima facie evidence of citizenship.......... 85
exclusive power of Congress over.......................        54
summary of laws concerning............................  54
power of, conferred upon certain state courts.............      54
must be granted in open court.............            56
granted by clerk without order of court, void........      56
admissions of voter concerning....................            95
voter cannot generally be required to produce certificate of
at  polls............................................       95
NATURALIZED CITIZEN
*  children of, born abroad are citizens....................        57
NOTICE
of election......................................117 118 119
of special election.....................................       120
want of, must in general have changed the result.........       135
to the great body of voters, necessary...................      136
of election, to fill vacancy...............1...........38 139 176




IN D E X.                           469
NECESSITY
for adjournment of election, who to judge................     91
may justify change of place of election................      115
NOTE
given for a wager void except in hands of innocent assignee   150
given upon contract to influence election.................    193
NEW JERSEY CASE IN CONGRESS
erroneous rule laid down in.............................     218
NOTICE OF CONTEST
must be given in time..................................  276
essential to validity of proceedings......................   341
requisites of, under act of Congress.......................    343
need not name illegal voters............................. 344;347
when and how served under act of Congress............        394
NUMBERING BALLOTS
statute requiring held unconstitutional..................    413
O.
OATH
of loyalty may berequired of voter................    31  32  33
failure of election officers to take.......3.......        305
OFFICER
executive cannot consider questions of fraud..............    213
when an officer may hold until successor qualified......   236
abandons his office by accepting another incompatible
office.............................................41 242
appointed during good behavior cannot be removed without notice and trial............................     254
conviction of for infamous crime.........2..........     255
has absolute right to resign............................     260
authorized to take testimony in contested election cases in
Congress, derives authority from act of Congress,......     314
all chosen at same election must be voted for at same time    163
OFFICE
qualifications for, not covered by certificate of election.   228
want of qualifications for, may be shown in prima facie
case.............................              222
should not be left vacant pending contest.................   204
qualifications for, how fixed.......................    226
where the holder of is presumed to reside................    230
vacancy in, appointment to fill..........................   237
when vacated by acceptance of another office.............     238
vacancy in, power to fill, does not imply power to create..   251
abandonment of...................................     253
dueling as a disqualification for.........................   256
alien may not hold, but may be elected to...............      258
prima facie right to (see chap. 4)




470                           IN DE X.
OFFICERS OF ELECTION
defacto and not dejure, their powers...............75 76 77 78 79
their qualifications, powers and duties (see chap. 2)
canvassing, their duties ministerial.8.................... 81
they cannot reject returns....................8...........        81
nor go behind returns for any purpose...................          82
ror inquire into charge of fraud...................8....           8.
possess no judicial power..............8............. 8.are judges of nothing outside of returns..................       85
may have enlarged powers under statute...............       86
what acts of, presumed correct..........................          87
when they may adjourn election.........................         91
erroneous rule adopted by............................     89
punished for false certificate..............................  99
governor of state is not.................................          99
presumption that they have been sworn...................         163
must sign returns........................................       174
required to send abstract of' return may send original.....      175
frauds by........................................... 184 185
good faith of presumed...................  185
disregard of law by.......................                302
failure to take oath................................. 05
their civil liability for misconduct in office (see chap. Il)
for what acts liable in damages.............................     494
in general guided by statutory directions.................  501
offer of voter to take oath generally entitles him  to vote... 501 502
in what casesofficer may reject vote after voter has taken
oath...................................      501
officer liable for omitting name of voter from the list......    503
statements of voter as to his residence.............             504
when liable for exemplary damages......................          505
proof that officers knew voter differed from them  in politics    506
presumption of good faith, when question decided is difficult-and doubtful..................................             507
distinction between fraud by them and by others..........        441
misconduct of, that will vitiate return....................      442
what-acts of, will constitute fraud.........................    455
what may be included in officers' certificate...............     104
OPENING AND CLOSING POLLS
rules concerning....................................... 114 142
ORGANIZED TERRITORY
when abolished by the formation of a state within its limits       17; 3
ORGANIZATION OF NEW COUNTY
must preserve all rights of citizens......................      191
OVERSEERS OF ELECTION
under special statutes..................................         198




T N D EX.                             471
ORGANIZATION
of legislative bodies (see chap. 12)
P.
POWER OF CONGRESS
to enforce the right to vote.                  12 13 14 452 453 454
under fourteenth amendment.......................... 15
under recent amendments..............................  16
to regulate federal elections....................... 1..7 309
to pass naturalization laws exclusive...............,54
to regulate senatorial elections.........................  201
PAYMENT OF TAX
as a qualification for voting............................        22
by one person for another................................        23
merely to secure right to vote...........................        24
persons exempted from on account of poverty............           26
PROOF
of naturalization...............................5...           35
what judges of election must hear.......................          5
as to how illegal votes were cast......................         300
PAUPERS IN ALMS HOUSE
place of voting.........................                      42
not allowed to vote in some states........................       73
PRESUMPTION
that persons voting without complying -A ith statute are
not legal voters..................................            62
in favor of certain official acts..........................      87
as to residence of office holder..................          230
POLLS
how long to be kept open............................  103 140
once regularly closed cannot be re-opened................      103
when to be kept open from sun rise to sun set...........        140effect of deviation from hours fixed for opening and closing     140
rules as to opening, keeping open, and closing...........        142
PLACE OF HOLDING ELECTIONS (see chap. 3)
must be fixed by law......................        109
for election of representatives in Congress.............109 110 111
for election of state officers.............................     112
statutes fixing are mandatory.............               114
effect of change of......................................       114
change of, from necessity...............................    115
place and time are of the substance of the election.......     135
when governor may fix................................           176
PRIVILEGE
of voting, how waived.........47...................           47
from arrest, of elector...................................       49




472                          I N D E X.
PROXY
voting by..............................................       48
PERSONS UNDER GUARDTIANz;TITTI
excluded from voting in some states.....................        73
PARDON
by executive restores right to vote.74
PUBLIC PROCLAMATION
of time and place of election must be made when required
by statute.............................................  118
POPULAR VOTE
what questions may be decided by.....................          152
PRIMARY ELECTION OR CONVENTION
corruption in....................                              192
POLICE REGULATIONS
concerning elections....................................       190
PRIMA FACIE RIGHT TO OFFICE (see chap. )
importance of filling an office pending contest............     204
danger of disregarding credentials......................       204
form of credentials.....................2........       205
majority of returning board may certify result of full canvass............................................   O   206
governor may certify to election of representative in Congress....................................        207
requisites of certificate to establish prima facie right.       208
commission confers a vested right..........................    209
once issued cannot be revoked.........................        209
but may be set aside by proper tribunal.................       210
conflicting certificates of election........................ 211
erroneous decisions as to effect of certificate of election to
Congress................................         211 212
executive or ministerial officer cannot consider questions of
fraud.213
fraud'.',.............................................     21
cases where neither claimant holds credentials.........      214
credentials necessary in general to admit claimant to office
in advance of investigation.2....................            215
house of representatives will not in prima facie case look
behind credentials................................         21(6
but will consider what appears upon the face of credentials 216 217
as where it appears that one or more counties were improperly omitted from the canvass......................      217
erroneous and dangerous rule laid down in the New Jersey
case...........                                           21.................  218
returns cannot be attacked collaterally...................     219
conclusiveness of certificate of election as between holder
and a stranger..........  219




IN )EX.                               473
PRIMA FACIE RIGHT TO OFFICE (Continued)
equity will not enjoin the use of a certificate of election by
the holder thereof..............     220
the only remedy is by contest at law...........      220
certificate of election how set aside..........              221
questions as to qualifications not settled by credentials.     222
want of qualifications may be shown. on prima facie case.. 222 223
how and by whom the question of qualifications may be
raised..........................,    222 223
case of Hunt vs. Chilcott..............................        224
claimant bound by evidence offered by him outside of his
credentials..................................2......... 224
where recitals in certificate show that claimant was not
elected..........................       225
PUBLIC POLICY
contracts against......................................        192
PAIRING OFF
between voters, illegal and void.........................      193
PLURALITY
generally sufficient to elect..............................    197
PRACTICE IN CONTESTED ELECTION CASES (see
chap. 6. Also see Evidence. Illegal Votes. Jurisdiction. Mandamus. Injunction Quowarranto. Equity.
information in nature of quo warranto.................         264
mode of procceeding at common law...................           265
information should set'forth incumbent's claims..........      266
returned member in legislature cannot vote upon his own
case..........                                    267
vote of acting Vice President Wade, on impeachment of
President Johnson.................................         268
what information for quo warranto must show..........          269
importance of showing for whom illegal votes were cast..        270
declarations of illegal voters................... 70 271 272 273
return not signed proves nothing...................,      274
petition in contested election case.......................     281
fraud, how alleged.                                             281
allegations of mere irregularities may be stricken out.....     282
names of illegal voters need not be given................      282
certainty to a common intent only required..........,,        283
amendment of pleadings..................       284
must be made without delay.............       285
pleading in contested election cases,...................       285
failure of officers of one out of many precincts to mnake return......................................2.....       86
when jury trial may be refused.........................        288
constitutionality of statute dispensing with jury..       289




474                          INDEX.
PRACTICE IN CONTESTED ELECTION CASES (Continued)
jurisdiction of legislature over election of its own members      295
disregard of law by election officers when it will vitiate return.................................................  02
when an entire poll should be rejected................302 303 304
failure of officers of election to take the oath required......  305
duty of purging the polls................................          305
extension of time to take testimony, not readily granted to
incumbent........................................      310
great diligence must be shown, and names of witnesses
given.............................................. 310 311
federal authorities will follow state in construing state laws   313
officers authorized to take testimony under act of Congress
derive authority from that act, and not from state law...       314
in what cases contestant must aver that he is anwelector &c'339
notice essential to proceedings.........................     341
how far practice in congressional cases conform to state
laws.........                                                  342
requisites of notice of contest under act of Congress of 1851     343
need not name illegal voters........................... 344 347
incumbent must use diligence in preparing for trial.....          347
act of Congress to regulate taking of testimony not absolutely binding.......... -............................. 348 349
house of representatives not bound by technical rules..... 349
statute directory only.................................          349
but should be followed as a rule...................            349
house may, on its own motion, investigate the election of a
member..........................  350
will construe liberally the act in relation to contested elections.............................  3.......    353
when notice may be amended...........................           353
when notice must be served...........................  354
how service of notice proved under act of Congress......        358
no default can be taken in case of contest in Congress..... 359 360
oath of election officers not a necessary part of return'....     364
what proof will avoid a return...........................        365
cases where it appears that all the votes are not correctly
returned......................................3.....           366
where the place of the election was not designated........       367
distinction between setting aside the return and setting
aside the election....................................         368
courts will not interfere in legislative contest..........     373
but will by mandamus compel the issuance of credentials.          373
special proceedings authorized by statute for contesting
elections.............................................         374
courts may compel contested election board to organize
and proceed.....................................           875




JIN  D E X.                           475
PRACTICE IN CONTESTED ELECTION CASES (Continued)
such a board must be wholly free from interest.......           376
rule for computing time within which notice must be given    377
governor and council may act as returning board but their
return is not conclusive in contest.....................     378
continuance in contested election cases not granted as in
other suits...........................................       381
contested election case, how compromised or settled......      382
rule as to counting rejected votes.........................    383
verification of petition in contested election case in Pa....   384
mode of proceeding in contested election case in legislative
body................................................        385
eturn may be impeached by calling voters to contradict its
truthfulness.......................................... 386
governor of a state may be required to answer in quo warranto...............................          389
trial by jury, can it be denied in an election case? quere.... 390
if return be set aside, all votes must be otherwise proven..    391
effect of fraud, upon a return............................     392
practice in contested cases in Congress...........      394
numerous general rules laid down.........................      394
promulgation of result of election.............       394
act of Congress regulating proceedings in contested election cases (appendix).................................  page 416
PROSECUTIONS FOR VIOLATION OF ELECTION
LAWS (chap. 10)
not necessary to prove that officers conducting election
were legally chosen.................................         459
nor to allege that the district where the election was held
is in the state........................................     460
nor that the election was a meeting of duly qualified inhabitants......................................      461
variance between allegation and proof....................      46t
what is meant by wilfully voting without proper qualification...................................                      463
the burden of proof as to residence, what will change. it..    464
evidence that party consulted counsel as to his right to
vote &c...........................................          465
officer not liable for honest error.......................   466
proper to look at the character of the question decided by
officer..................................                     467
double voting an offense at common law................ 468 469
voting out of township, when indictable..................      470
not necessary to state in indictment what officers were to be
chosen...............................................        471
circumstances showing a fraudulent voting away from residence................................................    472




476                           INDEX.
PROSECUTIONS FOR VIOLATION OF ELECTION
LAWS (Contin ued)
evidence that defendant consulted'"friends," not admissible      4713
not necessary to aver that the election was held by proper
officers..............................................         474
whether defendant must be showvn to have known himself
disqualified, quere.....................................       475
statements of voter made at the polls to the judge, held not
admissible...................  I.....................    476
when is the act of voting complete.......................  477
not always enough if indictment follows language of
statute.....................................  478 480 481 482
necessary to advise defendant of the particular charge
against him......................................... 480 481
irregularities in conduct of election no defense to indictment for illegal voting..............................          483
indictment for illegal voting must specify place of voting.       484
when notice of election must be shown to sustain indictment for illegal voting............................         485
a person convicted of crime when a minor cannot plead
minority as a defense to indictment for illegal voting....      486
inspectors not bound to administer oath to unregistered
voter..........4...................................            487
indictment must aver the facts constituting the offense....       489
when it is necessary to charge that illegal vote, was knowingly or fraudulently cast...........475 476 479 490 491 492 493
QQUALIFICATIONS OF VOTERS (see chap. 1)
how fixed.1
how    fixedU... ~.......  ~...............................
effect of fifteenth amendment, upon....................           2
right of suffrage not a natural right...................            3
enumeration of the.....................................            4
state cannot add to the constitutional....................          5
but may prescribe rules for the orderly exercise of the
right................................           6
removal from voting district within ten days of the election...................                                   6
state legislature may enact registry law.................          7
but must not go beyond regulation..8
effect of a disregard of registry law......................        9
effect of denial of registration.......                     10
effect of an offer to register.........................       10
wrongful refusal to permit registration..11
act of Congress upon this subject....1.......      11
duty of voter when refused registration..................
extent of power of Congress to protect a citizen in the right,
to vote &c............................... 12 13 14 452 453 4)54




I N D E X.                           477
QUALIFICATIONS OF VOTERS (Continued)
power of Congress under fourteenth amendment......... 15  16
right of deserter from army to vote.....................  18
disfranchisement as a punishment for crime.............        19
right of voting and being voted for not the same..........     20
what crimes are infamous...............................        20
dueling, not an infamous crime under New York statute..         20
fraudulent naturalization...............................       21
payment of tax as a qualification.2224............22 23 24 25
persons exempted from taxation on account of poverty...        26
tax assessed f{or the mere purpose of enabling a person to
vote.............................................. 28
residents upon land ceded to the U. S. by state, cannot vote    29
residents upon military reservations in the territories may
vote................................................................ 30
test oath as a qualification............................... 31 32 33
temporary absence of voter from his home...............        34
effect of voting at place of temporary abode.............. 34
it is strong evidence of an intent to reside there.........    34
certificate of naturalization prima facie evidence of citizenship................................................         35
and is all the proof the voter need produce................    35
and all the judges of the election can consider............   35
what constitutes change of residence....................       36
removal from one town to another in same county........        36
right to vote lost when removal complete................. 37
residence, its meaning considered.....................34 38 39 40
intention to remain necessary...........................     38
no person can have two residences.....................        40
residence of a man's family............................        40
residence once acquired, how lost.......................      40
further discussion of residence (appendix)................  p. 425
soldier in U. S. armymay vote at place of residence, but
not at military post............          41 58
student in college, place of voting......................      41
pauper in almshouse, place of voting....................    42
inhabitant not synonymous with citizen..................43 44 45
election district defined.......................4..........    46
what is meant by ten days residence prior to election..... 46
old residence not retained until new acquired.............     46
voting by proxy...........                                 48
idiots and persons non compos mentis cannot vote.........   50  73
enfeebled intellect does not disqualify....................    50
inhabitants of annexed territory, how they must qualify..      51
-residents within indian reservation cannot vote.52  53
naturalization generally necessary......................       54
summary of naturalization laws.........................        54




478                          I N  1) E X.
QUALIFICATIONS OF VOTERS (Continued)
state courts may refuse to naturalize......................      55
when certificate of naturalization is void.................      56
children of citizens born abroad are citizens..............      57
unmarried persons when "heads of families"............... 59
an equitable interest in land not an "estate in freehold"...      60
being assessed with part of the revenue..................  61
qualifications for voting at special election...............   63
legislature may prescribe proper questions to be answered
by voter.............................................  64  66
residence in township..................................          65
where no length of residence is fixed in the constitution,
none can be required...........................              65
record of conviction of voter, when to be produced at the
polls......................................  68
legislature cannot unreasonably postpone or embarrass
elections...................6.......................           69
but may require reasonable notice......................          69
change of jurisdiction over place of voters residence......       70
domicile of unmarried person............71......      71
rule as to legislature attempting to add to the constitutional
qualifications................................              72
paupers excluded in some states.........................         73
and persons under guardianship in others...              73
capacity to read and write required in Mass., capacity to
read in Conn...........................                        73
paridon by executive restores right to vote..............       74
QUALIFICATIONS, POWERS AND DUTIES OF
ELECTION  OFFICERS, (see chap. 2)
validity of acts of officers de facto................... 75 76 77'78 79
the acts of a mere usurper void..........................   80
color of authority necessary.............................  80
the duties of canvassing officers ministerial..............     81
they must decide what papers arec returns.....         82
cannot go behind returns............................    82
nor consider questions of fraud....................       83
have no discretionary or judicial power...................       84
are judges of nothing outside of returns.................  85
may have enlarged powers given by statute............             86
what act of, prima facie correct...................      87
may perform certain official acts after time fixed by law...      88
effect of the adoption of an erroneous rule, affecting a class
of voters.............................................         89
division of election district, effect upon officers thereof....  90
adjournment of election, when valid......................        91
an adjournment sine die dissolves election board.......        94
board may act upon voters admissions as to naturalization         95




IND) EX.                             479
QUALIFICATIONS, POWERS AND DUTIES OF
ELECTION OFFICERS (Continued)
effect of certificate signed by part of the members of a
board...............................     98
such officers may be punished for false certificate.........    9'9
governor, not an election officer.........................     99
fraudulent refusal to fix suitable voting places............   101 102
officers must keep polls open as long as law requires......   103
cannot re-open polls after once regularly closing them.... 103 105
what they may include in certificate......................    104
have no power over ballot when once deposited.......    106
amendment of record of vote.................      107
cannot multiply voting places...........................      108
QUALIFICATIONS OF VOTERS
statutes relating to are mandatory.......................     127
QUALIFICATIONS FOR OFFICE
the question not covered by certificate of election......    222
want of may be shown on hearing of prima facie case.....      222
how and by whom the question may be raised........... 222 223
by what authority fixed.............................,       226
for members of Congress, cannot be added to by state..227 228 252
for members of Congress and of members elect........... 241 242
one year's residence and citizenship......................    245
of Senators in Congress...                                     246
when fixed by constitution, legislature can add nothing
thereto.............................................        252
an alien is not qualified...............................      258
QUO WARRANTO
proper common law remedy to oust an usurper from office        264
information in the nature of............................      264
mode of proceeding in...................                      265
information should set forth claims of the incumbent....       266
what the information must show.................        269
is the proper remedy where there are conflicting claims to
office...............................................       320
R.
REMOVAL
of voter from one district to another....................       6
with family......................................            36
REGISTRY LAW
may be enacted by state legislature....................         7
but must not unnecessarily impair the right to vote.......       8
consequences of its disregard......................             9
when it does not apply to special election................   186
registry list prima facie evidence only...................    275




480                         IND EX.
REGISTRATION
consequences of a denial of, to legal voter..........   10  11
cannot be set aside by executive................:....... 67
list, may be copied for convenience................... 100
REGULATION
of elections for representatives in Congress...............    17
of the right to vote.............................. 69
statutory, necessary concerning elections..............    121
of senatorial elections......................0.......    201
RESIDENTS
upon lands ceded to the United States may not vote......       29
upon military reservations in territory, may vote.........     30
upon an indian reservation may not vote.................  52  53
RESIDENCE AS A QUALIFICATION FOR VOTING
the subject considered.................... 34 36 37 38 39 40 41.
residence of public paupers..............................      42
of student in college..................................        41
residence in election district...........................      46
residence ten days prior to election.....................     46
residence in township.,.............................           65
when no length of, is fixed in constitution, none can be required............................................  65
subject further considered (appendix)..................   p. 425
RESIDENCE AS A QUALIFICATION FOR OFFICE
in a particular place, cannot be required of a member of
Congress...........................................         227
of office holder, where presumned to be..................     230
residence and citizenship as a qualification...............   245
RETURNING OFFICER
when he may give casting vote..........................       47
RECORD OF CONVICTION
of voter must be produced............................  68
RETURN
cannot be rejected by canvassing board................ 81
but such board must decide what is a...................      82
canvassers cannot go behind............................       84
may be made out of time..................................    145
not conclusive....................1.....................      145
when a partial, is bad...................................     155
may be impeached and rejected..........................       156
duplicates, may differ slightly..................            157
may be certified by majority of board.....................    158
if irregularly transmitted must be proven genuine.........     160
when sent in unsealed..................................       166
courts go behind to correct errors........................ 174




INDEX.                              481
RETURN (Continued)
must be signed.................................   174 274
when rejected, vote must be otherwise proved.........174 302 436
sending original instead of copy or abstract.......... 75
when to be set aside for disregard of law.................    199
cannot be attacked collaterally...........................    219
failure to make in one, out of many, precincts.............    286
when a disregard of the election law, will vitiate.........  302
in what cases the entire poll should be thrown out........ 303 304
the duty of purging, of all illegal votes................ 305
may be impeached by showing that it does not allow as
many votes as were in fact given to a particular candidate............................................    386
if set aside, no votes not otherwise proven can be counted.   391
when set aside for fraud................................    436
effect of setting aside...................................   437
must stand until shown to be false.......................    438
danger attending application of rule.....................   438
parol proof admissible to impeach......................    439
what evidence sufficient................................     440
what fraud will be fatal to return......................... 441 442
presence of unauthorized persons in room with officers...    443
misconduct which destroys the integrity of a.............    442
REPRESENTATIVES IN CONGRESS
manner of their election...............................  143
election by state at large.............................      144
election of, in anticipation of admission of new state......  172
no valid election without timne and place are fixed by law..    177
power of military governor to fix time and place.......     178
qualifications for.......................................    227
cannot be required to reside in any particular part of district..........                                  227
acceptance of incompatible office by.....................    243
how he may resign..................... 0................     244
REASONABLE NOTICE
of election to fill vacancy.............................     176
RESULT
when it cannot be ascertained with reasonable certainty,
election void........................................      182
RECOGNITION
of re-organized state government............... 202
RIGHT TO  OFFICE PRIMA FACIE (see chap. 4)
RESIGN
any public officer may........................            260
RETURNED MEMBER
cannot vote upon his own case in legislative body....       267
31




482                           IND EX.
S.
SUFFRAGE
right of, not a natural or unqualified right................       3
STATE LEGISLATURE
cannot add to constitutional qualifications of voters.......       5
may enact a registry law............................             7
may prescribe a test oath of loyalty for voters............  31  32
power of, to fix place of election for representatives in
Congress........................................109 110 111
cannot re-consider election of U. S. Senator..............       161
cannot add to qualifications of federal officers......... 227 228
STATE
power of, to regulate suffrage...........................           1
meaning of, in 14th amendment..............        15
organized within an organized territory.................         173
SOLDIERS
in U. S. army, when and where they may vote.......                 41
cannot gain residence at military post...      58
validity of statutes allowing them to vote in field......      120
not to be quarted at or near election.....................        419
act of Congress on this subject (appendix)..............   p. 406
STATE COURTS
may refuse to grant naturalization.....       55
SPECIAL ELECTION
qualifications for voting at..............................        63
notice of.....................................       10   0 11  112
SURPLUSSAGE
in officer's certificate................................... 104
STATUTES
excluding from suffrage, idiots, lunatics, paupers, and illiterate persons......................................
conferring large powers upon election officers............        86
fixing time for performance of official act...........       88
making provisions concerning elections.......... 126 127 128 129
requiring all votes to be given in presence of high sheriff..      181
authorizing overseers of elections................1.....         198
what are directory, and what mandatory......                     200
STATE CONSTITUTIONAL CONVENTION
power of as to fixing place of election of representatives to
Congress................................109 110 111
SENATORS IN CONGRESS
their election...........................161 164 165
regulation of their election...........................         201
qualifications of........................................        246
tenure of, under executive appointment...............  247 248
act of Congress regulating election of-(appendix)..........    p. 413




INDEX.                               483
SECRECY OF BALLOT
importance of preserving.......................           194 195
voter cannot be compelled to disclose....................     198
nor will person learning it by trick be permitted to disclose it   195
STATE OFFICE
qualifications for, how fixed............................  226
SECONDARY EVIDENCE
of true state of the vote, may be received if return be set
aside............................................. 303 304
SERVICE OF NOTICE
of contest, under act of Congress, how made and proved...      394
SUBP(ENA
in contested election case under act of Congress, how
served &c............................................       394
SUPERVISORS OF ELECTIONS
their duties under enforcement acts of Congress (appendix)  p. 408
T.
TAX
payment of as a qualification for voting............ 22 23 24 25 28
TERRITORIES
residents upon military reservation within...............      30
elections within such reservation........................      30
residents within indian reservation.......................52  53
TEST OATH
as a qualification for voting.............................     31
TEST QUESTIONS
may be put to voter....................................        64
the character of questions to be put.....................      66
TIME, PLACE AND MANNER OF HOLDING ELECTIONS (Chap. 3,)
time and place must be fixed by law..109
statutes allowing soldiers to vote out of State.109 110 111 112 113
place of election for representative in Congress...          109
power of state constitutional convention to fix........109 110 111
place and time for election of state officers.............   112
statutory provisions as to time and place mandatory...... 114 135
effect of change of time and place............... 114 115
keeping open the polls..................................     114
failure to open or close polls at proper time............ 114 140
change of place from necessity.........................      115
formal notice of election not always required..........116 117 118.
cases where the law fixes time and place.......      118
when want of notice, is fatal to election.............119 135 136
notice of special election to fill vacancy..........120 137 138 139




484                         IN DE X.
TIME, PLACE AND MANNER OF HOLDING ELECTIONS (Continued)
statutory regulation necessary..........................       121
change of place by vote of town meeting................  122
irregularities generally disregarded................... 123 124 125
what are irregularities...........................126 127 128 129
statutes requiring separate boxes for state and federal tickets 130 159
ballots deposited by mistake in wrong box........130 131 132 133
erroneous ruling of election officers.....................   134
affecting a class of voters...............................     134
when voter may be excused from offering his vote.......        134
failure to mention a vacancy in a proclamation for election     139
effect of deviation from the hours fixed for keeping open
the polls..............................    140
votes cast after legal hours..............................     141
rules as to opening, keeping open and closing the polls...     142
manner of choosing representatives in Congress, power
of Congress, to regulate............................     143
right of Congress to require election by districts.........    144
return may be made after time fixed.....................       145
return not conclusive..................................        145
use of money to influence election.................... 146 147
what contracts touching  elections are  void, and what
not........................................... 147 148 149 150
what questions may be submitted to a popular vote....... 152 153
when a partial return is bad............................      155
impeachment of return......................             156
return must be -signed by majority of board..............        158
return must be proven genuine, if not sent through authorized channel...........6............................         1(0
election of Senator in Congress, cannot be reconsidered..       161
voter must vote for all officers at one time...............    163
return of votes unsealed............................166
error of clerk, when corrected......................... 167 168
tie vote, when it requires a new  election................. 169 170
certificate of election not absolutely required....... a....    171
election of representative in Congress, in anticipation of
admission of new state................................        72
courts go behind all returns to correct errors.............    174
returns must be signed.................................        174
how vote proven if return is rejected....................      174
when governor may fix time and place.................          176
no election can be held if there is no authority to fix time
and place................................          177
power of military governor to fix time and place.........      178
congressional district, which elects a representative, though




IND EX.                                485
TIME, PLACE AND MANNER OF HOLDING ELECTIONS (Continued)
afterwards divided, must fill vacancy occurring within
the term............................................. 179 180
statute requiring all votes to be given in presence of high
sheriff........... e...................................    181
effect of proof, which renders it impossible to decide who
is       elected............................................... 18
fraud by election officers............................. 184 185
when registry laws applies to special elections............        186
officers to be chosen at "general election"................ 187 188
effect of voting for one, when two are to be chosen.......       189
effect of unconstitutional police regulations.............       190
the right of suffrage and representation cannot be taken
from the people of a county...........................         191
corruption in primary elections and conventions..........        192
providing liquors to influence voters.....................       192
contract to aid in another's election, when void..........        193
agreement to "pair off" between voters...........         193
reasons for adopting the ballot..........................        194
devices to destroy the secrecy of the ballot...............      195
voter cannot be required to disclose contents of ballot....       195
nor can another who learned the fact by trick............         195
how contents of ballot may be proven...................          196
fraudulent and illegal voter must disclose................       196
plurality will in general elect............................      197
overseers of elections, under statute.....................       198
have a right to be present...............................        198
disregard of essential requirements of the law, when fatal         199
what provisions of statute are mandatory................         200
the election of Senators in Congress.....................        201
act of Congress regulating (appendix)...................   p.- 413
effect of recognition by Congress of the re-organization of
state government...................................        202
senators must be chosen under act of Congress........... 201 203
TENURE (see chapter 5)
when the acceptance of an office requires change of residence.................................................  230
tenure of office of Senators in Congress by appointinent.. 247 248
of officer holding during good behavior.................. 254
how dependent upon will of incumbent..................           260
term of office not affected by death of incumbent..........      201
a person receiving a minority of votes is not elected,
although the person receiving a majority be disqualified.2..................... 231 232 233 234 235




486                          IND EX.
when officer may hold until successor is chosen and qualified............................................ 236 237
member of Congress forfeits his seat by accepting disqualifying office...................238 239 240
but a member elect may hold such an office.............. 241 243
cases of Gen. Blair and Gen. Schenck................... 242
right of resignation...................................        244
alien may not hold office of Senator in Congress..........      246
TALLY SHEETS
when admissible as evidence............. 291
TRIAL BY JURY
in contested election cases.............................      390
TESTIMONY IN CONTESTED ELECTION CASES
when and how taken under act of Congress..............        394
UNMARRIED PERSONS
U.
when "heads of families"........................                59
domicile of.......................................... 71
UNITED STATES SENATORS
legislature cannot re-consider election of.................    161
election of, by rival bodies..............................    161
regulation of the election of.............................     201
must be chosen according to the act of Congress.......... 201 203
act of Congress regulating election of (appendix).........  p. 413
V-.
VOTERS
qualifications of (see chap. one)
qualifications of, enumerated............................        3
temporary absence of, from home........................       34
may be required to answer certain questions..............       64
admissions of, as to naturalization.......................      95
cannot generally be required to produce certificate of naturalization at the polls..............................      95
when excused from offering his vote..................       134
must vote for all officers, to be chosen, at one time........   163
providing liquors to influence......................            192
agreement to "pair off" between........................        193
cannot be compelled to disclose secret of ballot............   195
but if voting illegally must disclose.......................  196
plurality of, generally elects...............................  197
illegal, names of, need not be given in notice or petition in
contest................................................      315
may waive privilege, and answer for whom they voted....         301
are privileged from arrest in certain cases................     49
VOTING
at a particular place, evidence of res dence................34
by proxy........................,                              48
in violation of law.................................      62




INDEX.                                487
VOTING PLACES
refusal of proper officer to fix suitable..   I...........    Ioo
fixing so as to prevent fair election......................    102
only one generally allowed in precinct...................  108
VACANCY IN OFFICE
election to fill, notice of..........................20 137 138 139
in office of representative in Congress.................      176
appointment to fill......................................  237
power to fill does not include power to create.............    251
governor cannot conclusively determine that one exists....     251
judicial determination of not required....................    263
when office becomes vacant by expiration................       236
VOTES
cast after legal hours....................................    141
not returned may be proved and counted...............         145
illegal, rule concerning, when it does not appear for whom
they were cast.....................................298 299 300
VIOLENCE AND  INTIMIDATION  (see chap, eight)
what disturbances will vitiate an election............ 416 417
armed soldiers at the polls........................       418
when the presence and conduct of troops will vitiate an
election...419 420 421 422
charges of, should always be considered..........              423
in what cases votes not cast by reason of, can be counted as
if cast................................................   423
allegations of, to be investigated.........................    424
only the infected poll to be rejected......................  425
effect of upon the vote of peaceable polls..........426 427 428 429
what is a sufficient allegation of.........................  430
testimony of persons intimidated should be produced.....        431
importance of preserving freedom of electors.............      432
militia not to drill on election day............4........     433
may in certain cases be punished under act of Congress...       434
punishment of, under enforcement act...................      435
W.
WAIVER
of constitutional right to vote............................     47
WANT OF NOTICE
when it vitiates an election................ II6 117 118 119 120
WAGER
upon result of elcction.................................    149
note given for.........................               149 150
WITNESSES
in contested election cases under an act of Congress, punished for refusal to appear.............................     394
how and by whom examined............................           394
WRITING
on ballot prevails over print.408 409