A TREATISE ON THE AMERICAN LAW OF ELECTIONS BY GEORGE W. McCRARY, < I IiATB JUDGB OF THE UNITED STATES CIRCUIT CIOURT, ElOHTH CntaUOf AND Formerly Member of the House of REPRESENTATim OF THE United States, and Chairman of the Com- mittee OF Elections or that Body. FOURTH EDITION E0IT£D BY HENRY L. McCUNE, Of the Kansas City Bab. CHICAGO: CALLAGHAN & CO. 1897. JK /^ fc/ A1 5 Entered according to the act of Congress, in the year 1876, By GEO. W. McCRARY, in the Office of the Librarian of Congress, at Washington. Entered according to the act of Congress, in the year 1880, By GEO. W. McCRARY. in the Office of the Librarian of Congress, at Washington. Entered according to the act of Congress, in the year 1887, By GEO. W. McCRARY, in the Office of the Librarian of Congress, at Washington. COPYKIGHT, 1897, BY CALLAGHAN & CO. DEDICATION TO THE HONOBABUI SAMUEL F, MILLER, LL, D., ABSOCIATB JUSTICE 817FRBME COURT UNITED STATES, THIS TREATISE IS MOST RESPECTFULLY DEDICATED. HIS GREAT liBABNINO AND ABILITY AS A LAWYER, Aim AS A JUDGE; HIS HIGH CHARACTER AS A MAN AND AS A CITIZEN; AMD THE LASTING OBLIGATIONS I AM UNDER TO HIM FOR GENEROUS AID AND INSTRUCTION AS MY TEACHER IN THE LAW, AND FOR AN EARNEST FBIENDSHir CONTINUING THROUGH MANT TEARS, ALL COMBINE TO MAKE THIS RECOGNITION AND ACKNOWLEDQ- MENT BOTH A DUTY AND A PLEASURE, ON THE PART OV HIS FRIEND AND FUFIL. Tbb AuraoB. A Q Q O \ "■' ^ v O >v -i i PREFACE TO THE THIRD EDITIOK. This work, as originally published in 1875, was the ftrst atle w p t in this country to bring together, arrange and consider, ia con- venient form, and under proper heads, the scattered adjadieations relating to the law of elections. The purpose was not only to aid the bar and bench in the preparation, trial, and deciMOQ of cases of contested elections, but also to diminish the number of such contests by furnishing information both to election o£5eerc and to voters, as to their respective powers, rights and duties. The work has been received with greater favor than was antici- pated. The first and second editions having been exhausted, it has been thought expedient to prepare a third, much enlarged, and, it is believed, more conveniently arranged. As this is the only work of this character extant in this country, there would seem to be good reason for its revision, enlargement and re- publication, notwithstanding the prevailing and generally well founded prejudice against the multiplication of books of law. The subject treated is of great impcMrtance especially to the people of the United States. In a country like ours, where most of the powers of government reside with the people and are delegated to representatives chosen by means of the ballot and who generally 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 must be numerous, and it is manifestly a matter of great consequence, that the principles which are to control in their determination should be understood, not only by the legal profession, but also as far as poaable by the people generally. VI PEEFACE. The work was originallj undertaken in view of the fact that the law upon this subject, as determined by the decisions of courts and other tribunals having- jurisdiction of such questions, was only to be found by searching through many hundreds of volumes of reports, thus rendering the task of collecting and ex- amining them very tedious and laborious. Under these circum- stances it was thought that a brief and clear statement of the principles and rules touching this subject which have been set- tled, and a citation of the authorities where they may be found more fully discussed, would prove very acceptable; and the rapid sale of the first and second editions would seem to show that this expectation has been realized. The work is entitled 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. It is not asserted that the English authorities are of no value upon this branch of the law. On the contrary they have been freely cited whenever deemed applicable and useful. It was deemed proper, however, to keep steadily in view the fact that the genius of our institutions, the character of our political sys- tem, and the principles upon which the right of suffrage in this country is founded, all difiFer so radically from those of England as to diminish very greatly the value of English precedents in election cases; and the efFort has been 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 treated, upon a firm and lasting basis. The thanks of the author are due to Fred P. Barnett, Esq., for valuable assistance in the arrangement of the matter for this edition, and in editing the same, as well as in the prepanUioa of the table of contents, table of cases, and index. Kansas Citt, Missoubi, 1887. EDITOR'S PREFACE. Shortly after the death of Judge McCrary in June, 1890, there came into my possession certain memoranda which he had intended for use in preparing a new edition of this work. The thought of preserving this material led me to consider the propriety of supplementing it with my own work sufl&ciently to produce an acceptable new edition. That which was at first a sentiment has since seemed a necessity, partly on account of the natural accumulation of decisions bearing upon this subject, but chiefly because of the general adoption by the different states (since the issuance of the third edition) of the Australian Ballot System. This subject has of necessity been treated in a new chapter, A chapter has also been added in which will be found a consideration of the origin and nature of suffrage in this country, and the doctrine of sovereignty as it exists in the United States. The new matter has been carefully distinguished from the original text. New sections when inserted in old chapters bear the number of the last preceding section with a small italic letter (a, 6, etc.) added. All new matter, whether in the text or notes, except new chapters I and XXII, is distin- guished by inclosure in brackets. It affords me pleasure to acknowledge here my obligation to Mr. James De Witt Andrews, of the Chicago bar, for valuable assistance in the preparation of the first chapter, and to George H. McCrary, son of the author, for constant and intelligent co- operation. H. L. MoC. Fbbbuaet 18, 1897. CONTENTS. CHAPTER I. THE RIGHT TO VOTR Suffrage defined §1 The object of suffrage 2 The right to vote not of necessity connected with citizenship . 3 Suffrage not a natural right 4 The doctrine as stated in the case of Anderson v. Baker ... 5 As stated in the case of Blair v. Ridgely t The right to vote distinguished from the right to practice a pro- fession or calling 7 Electors may be disfranchised by constitutional provision . . 8 The American and English theories of the right to vote distin- guished 9 In the United States, the right of suffrage depends upon the will of the people 10 Who are the people 11 Declarations upon the subject contained in the Declaration of Independence and in preambles to constitutions .... 12 The theories of early speakers and writers 13 Conclusion from the foregoing 14 Arguments of counsel in Chisholm, Ex'r, v. State of Georgia . . 15 View of the Supreme Court of the United States in Penhallow v. Doane's Adm'rs 16 Doctrine as stated by Judge Taney in Dred Scott v. Sanford . . 17 At the time of the formation of the Union, the people were the citizens, independent of age or sex 18 How did the Constitution become binding upon the people . . 19 The theory of consent by ratification 20 View of the Supreme Court of the United States in Inglis v. Trustees of Sailor's Snug Harbor 21 View of the same court in Ware v, Hylton 22 The provisions of constitutions binding upon all citizens, irre- spective of age or sex 23 Have the people, by constituting the electors, surrendered the sovereignty 34 X CONTENTa View of Supreme Court of Pennsylvania in case of Wells v. Bain, to the efifect that the sovereignty still resides in the en- / tire citizenship § 25 ^ The same view expressed in Anderson v. Baker, by Supreme Court of Maryland 26 ^ An investigation of the question from a practical standpoint . 27 Same subject continued 28 Is the body politic sovereign only in theory, or is it also sovereign as a practical fact 29 Same subject continued 30 The right to fix the qualifications of voters is in the people of the respective States, subject to limitation contained in Fifteenth Amendment 31 Qualifications of electors determined by the people in constitu- tional conventions 32 Power of the people to limit the discretion of voters in the choice of persons to fill offices 33 Inability of the people to withdraw political power, except in the manner provided by Constitution 34 Exercise of the elective franchise by a portion of the commu- nity a fair and useful restriction 35 CHAPTER II THE RIGHT TO VOTE— HOW PRESCRIBED AND REGULATED. Power of the States and of the United States to fix qualifications § 36 Power of the State limited by the Fifteenth Amendment to the Constitution of the United States 36 State regulations followed by Federal government 87 Except such as confiict with Federal Constitution or laws . . 37 Qualifications of voters for Presidential electors 88 Nature and extent of power of Congress over suffrage ... 39 Rights conferred by Fifteenth Amendment 40, 41 Power of Congress thereunder 40, 41 Decisions of United States Supreme Court . 43 Regulation of Federal elections; power of Congress .... 43 Punishment of fraud in Federal elections . . 43, 44 Regulation of Territorial elections 45 Nature of right of suffrage and whence derived 46 Legislature cannot add to or alter constitutional qualifications 47 Change of election districts 47 Right to representation in government cannot be impaired or taken away 48, 49, 51, 52 Voter may be questioned as to qualifications 50 Validity of acts prescribing test oaths 53-56 Act authorizing Governor to impair right of suffrage void . . 57 CONTENTS. XI Regulations must be reasonable § 58 Distinction between regulation and impairment of the right to vote 58-62 Casting vote in case of tie 62 Right may be limited to male citizens 63 But may by constitutional provision, or sometimes by legislative act, be extended to females 63 But only upon same terms and conditions as are applied to males 63 And cannot be extended by statute to females when construct- ively limited to males by constitutional provision .... 63a Construction of Fourteenth Amendment to the Constitution of the United States 64 In what States women may vote 64a Constitution of New Jersey of 1776 permitting female suffrage . 64& CHAPTER III. QUALIFICATIONS OF VOTER& Usual qualifications enumerated §65 Meaning of word " inhabitants " 66 Citizenship 66-68 Effect of Treaty with Mexico upon statxis of inhabitants of ac- quired territory 69 Naturalization 70-83 Power of Congress exclusive 70 Summary of naturalization laws 71 What courts may grant naturalization 72-74 Proceedings in court required 75 Judgment final 76 How fact of naturalization may be proved 77-79 Where no record of naturalization can be produced .... 79a Who may be naturalized 80, 81 Residence required 82 Also good moral character 83 Construction of act of Congress of April 14, 1802, as to rights of certain minors 84, 85 Collective naturalization 85a Status of child of alien parent who has filed declaration but neg- lected to perfect his naturalization 855 Children born abroad whose parents are citizens 86 CHAPTER IV. QUALIFICATIONS OF YOTEHS — Continued. Residence always required § 87 Residence defined 88 Residence at United States Navy Yard, Arsenal, or the like . . 89 Ill CONTENTS. Residence of soldiers § 90, 91 Reeidence within Indian or military reservation 92, 93 ( inge of residence 94, 95 Temporary removal 96-100 Residence and domicile synonymous 98 Residents of students at college 101-103 Importance of the question of intention 102, 103 Paupers abiding in a public almshouse 104 A prison not a place of residence 104a The intention to remain at a particular place 105 Rules oi evidence 106 Payment of tax 107 Mode of assessing tax 108, 109, 112, 118 Payment by agent 110 Persons exempted from payment of taxes Ill Definition of phrase " housekeepers and heads of families " . . 114 Mental capacity required 115, 118 Rule in Kentucky as to deaf mutes 117 CHAPTER V. DISQUALIFICATIONS OF VOTERS. Disfranchisement as a punishment for crime not cruel or un- usual § 118 Infamous crimes 119-121 Dueling 119,120 Sending or accepting a challenge to fight a duel 119, 120 Effect of sentence of fine under act authorizing fine, or imprison- ment in the penitentiary 120 Conflicting decisions 120 Discussion as to meaning of " infamous crime " 121 Decisions of United States Supreme Court 121 Desertion from military service 122 Effect of act of Congress of March 3, 1865 122 Judgment of a court of competent jurisdiction after trial neces- sary 133 The question is judicial and must be decided by the courts . . 124 Record of conviction must be produced before election oflScers . 124 Effect of pardon 125 CHAPTER VL REGULATIONS. Must be reasonable ,§ 126 Must regulate, and not impair, the right to vote 126 Registration laws constitutional 127-134 CONTENTS. XIU May operate only in certain cities and villages § 138 Distinction between regulation and subversion of right ... 139 Validity of acts requiring registration prior to day of election 130, 131 Conflicting decisions 133 Weight of authority sustains validity of such acts 138 All regulations must be reasonable 133 Decision in Massachusetts 134 Provisions of registry law cannot be disregarded 135 Denial of right of registration 186-138 Mode of conducting registration 139 Notice 139 Change of place 139 Statutes prescribing mode of proceeding generally directory . . 140 Legal voter not prejudiced by irregularities 140 Proof required of unregistered voter 141 Nature and extent of power of Congress to prescribe regulations 143 Constitutionality of Enforcement Act 143, 144 Implied power of Congress over Federal elections . . • . 145, 146 CHAPTER VII. REGULATIONS — Continued. Statutory regulation necessary § 147 Regulation of election of Senators in Congress 148, 149 Mode of conducting such election 150 Act of July 35, 1866 151, 153 Time and place of all elections must be prescribed 153 Invalidity of statutes authorizing a soldier to vote while absent from his residence 153-157 Change of voting place 158, 159 Adjournment of election 160, 166 Premature closing of polls 161 Keeping polls open after lawful hours 163-165 Persons not voting generally bound by result 167 Exceptions to this rule 168-170 Fraudulent organization of election board 171 Irregular reception of legal votes 173 Mode of voting where separate boxes are provided by law for State officers and members of Congress 173, 174 Voting by proxy unknown at common law, but allowed in cer- tain corporate elections 175 Time and place are of the substance 176 Notice 177,188 When the prescribed notice is necessary and when not . . 178-181 Distinction between regular and special election as to notice re- quired 183-185 XlV CONTENTS. Power of Governor to fix time and place of holding election for Representative in Congress § 186 Time and place of such election must be fixed by a competent authority 186,187 Power of Military Governor 188 Effect of change in Congressional district 189, 190 Validity of act of June 25, 1842 191 Power of Congress to require election by districts .... 191, 192 Application of registry law to special elections 193 " General election," meaning of phrase considered .... 194, 195 Mode of conducting special elections 196 What questions may be submitted to popular vote 197 Local-option laws 198-200 Return of votes after time prescribed 201 Invalidity of partial return 202 Effect of irregular transmittal of returns 203-205 Plurality generally suflBoient to elect 206-208 Meaning of " a majority of the voters of a county " 208 And of " the qualified voters therein " 209 Deciding tie vote by lot 210, 211 Minority representation and cumulative voting 212 Statutes forbidding use of money to influence elections . . 213, 214 Bribery 215-217 Wager upon result of election 218, 219 Contracts tending to corrupt elections 220 Effect of irregularities 222-225 Numbering ballots 226 What statutes are mandatory 227-229 And what directory 227-229 Depositing ballot in wrong box 230-233 Voting by mistake in wrong precinct 234 Adoption of erroneous rule by officers of election affecting class of voters 235 Voter not generally prejudiced by errors or mistakes of election officers 236-239 Unconstitutional police regulations 240 Effect of violence towards election officers 341 Effect of reckless disregard of essential requirements .... 243 Illustrations of rule that mere irregularities will not vitiate an election 243 Holding of elections in territory acquired from foreign govern- ment 244 Holding an election in a Territory in anticipation of admission into the Union 245 Formation of State Government out of part of organized Territory 246 Effect upon remainder 247 CX)NTENTS. XV CHAPTEE YIII. ELECTION OFFICERS — QUALIFICATIONS, POWERS AND DU- TIES. Validity of acts of officers de facto § 247-252 Color of authority denied 253 Temporary departure of officer, no abandonment 254 The office must lawfully exist 255 State and Federal officials may act at same election .... 256 Paramount authority of latter with respect to Federal elections 257 Liability of State officials under act of Congress in certain cases 256, 257 Election officers not to be interfered with 258 Duty of certifying officer 259 Duty of canvassing officer 260 "What duties are ministerial 261 Canvassers can receive no evidence outside of returns unless ex- pressly authorized by law 262-266 Canvassing board has, in general, no power after adjournment to reconvene and recount vote 267, 268 But may be compelled by mandamus to re-assemble and complete its work in certain cases 269, 270 Amending returns under statute of Massachusetts 271 Partial canvass not sufficient 272 Governor of State not an election officer within meaning of act of Congress of May 31, 1870 273 Law presumes validity of official acts of an election officer . . 274 Adjournment of an election by order of proper officer presumed to be valid 274, 275 No right to organize independent or outside polls 276 Effect of division of election precinct 277 Facts which may be certified 278 No power over ballot after same is deposited 279 Duty of town clerk under law of New Hampshire 280 Opening and closing polls 281 Time within which official act shall be performed 282 Provisions as to mode and manner generally directory . , . 283 Number of voting places 284 Fraudulent refusal to establish voting places 285, 286 When judges may refuse to administer oath to voter .... 287 Failure to appoint inspectors of election within time required . 288 CHAPTER IX. ELECTION OFFICERS — CIVIL LIABILITY FOR MISCONDUCT IN OFFICE. Wilful and corrupt denial of right of voter § 289 In what cases malice must be shown 289 B XVI CONTENTS. Rule in Massachusetts and Ohio § 289, 390 Rule in Pennsylvania 291 Rule where duty is grtasi-judicial 293 Honest mistake by registering officer 293, 294 Statutes prescribing specific duties must be obeyed .... 295-397 Duty of election board where voter offers to take statutory oath 295, 296 What will amount to seasonably placing voter's name upon the list 297 Duty of voter to furnish evidence of his right 298 Statements of voter as to his place of residence may be proven . 298 Malice not presumed 299 Evidence that officers of election knew that plaintiff differed from them in his political sentiments 800 Exemplary damages, when allowed 801 CHAPTER X. OF THE PRIMA FACIE RIGHT TO AN OFFICK Importance of the subject § 80% The person holding ordinary credentials presumed elected and allowed to act pending contest 808 Credentials, form of 303 Certificate of majority of certifying board sufficient .... 804 Credentials of members of Congress 305 Who may issue 806 Certificate of election confers vested right, but does not oust jurisdiction of proper tribunal 806-308 Power of Governor to revoke commission 807 Power of lower House of Congress when no certificate has been issued to either claimant 809-318 Effect of certificate showing only partial canvass ..... 814 Certificate of election cannot be collaterally attacked . . . 315, 816 Courts of equity will not interfere with contested election case . 817 Further discussion as to effect of certificate of election . . 818-321 CHAPTER XL OF ELIGIBILITY TO OFFICER AND OF TENURK Qualifications for Federal offices § 322 Qualifications for State offices 823, 833 Qualifications for Representatives in Congress 824 Meaning of the term " inhabitant " as used in the United States Constitution 834 Residing abroad as representative of the Government of the United States 835 CONTENTS. XVll A State has no power to fix qualifications of Representatives in Congress § 326 Effect of votes cast for ineligible candidate 327-331 Effect of votes cast for a candidate dying on day of election . . 331a The English rule 328 Not generally adopted in this country 828-330 Decision of United States Senate 331 Effect of conviction for crime 332 Effect of an offer by candidate for office in the nature of a bribe 333 Effect of absence while engaged in discharge of duties of public office 334 Holding an incompatible office 835 Incompatibility defined 835, 336 Holding an office under the United States 837 Effect of acceptance of commission in military service upon ten- ure of member of Congress 338 Effect of same in case of member of Congress elected but not sworn in 338, 339 An attorney retained in a particular case by the Attorney-Gen- eral of the United States not an officer of the United States 339a Acceptance of incompatible office equivalent to resignation . 340 Effect of being a candidate for two incompatible offices at same election 840a Lucrative office 341 Character of residence required 843 Election of alien to United States Senate entirely void . . . 343 Dueling under Constitution of Kentucky 844 Conviction necessary 344, 345 Citizenship necessary whether expressly so provided or not . . 346 Legislature cannot add to constitutional qualifications . . . 847 Abandonment of an office 848 Holding over until successor is chosen and qualified ... 849-351 Resignation, acceptance not necessary 352 Tenure during good behavior 858 Right to hearing before removal 854 Commission of crime does not ipso /acfo vacate office .... 854 Power of removal 355 When judicial declaration of vacancy is necessary .... 856-358 Vacancy cannot be anticipated 359 Vacancy in office of United States Senator 860 Filling such vacancy by executive appointment 861 Member of Congress may resign without notice to the House . 362 Declaration of vacancy by Governor 863 Vacancies that may happen " during recess of the Senate " . . 864 Discussion as to construction of Article 2, Section 2, Clause 3, Constitution of the United States 864 XVni CONTENTS. Power to fill vacancies generally § 365 Construction of Article 1, Section 3, United States Constitution . 365 In what cases Legislature may fill offices 366 Right of incumbent to fees and emoluments 367 In this country appointment or election creates no contract for any particular period . . . . • 368 CHAPTER XII. CONTESTED ELECTIONS — TRIBUNALS AND REMEDIES. Quo warranto, common-law jurisdiction § 369 Special tribunals 369 Office of Governor 869 Jurisdiction of Legislature 370 Mode of proceeding before legislative body 370 Contestant not absolutely necessary 371 Construction of acts of Congress regulating mode of proceeding 372 Such acts directory only 373 Certificate of election prima facie only 374 Sitting member not entitled to vote 875, 376 Jurisdiction of the House exclusive 377 Jurisdiction of special tribunals 878 Courts may compel them to act by mandamus 379 Members thereof must be disinterested 379 Power of legislative bodies to judge of the election and qualifica- tion of their own members, when exclusive 380 Jurisdiction of courts in absence of special provision of law . . 381 Such jurisdiction extends to a contest for the office of Governor of a State 382 But not to control the Governor in the perforuiiance of official functions 383 Mandamus to compel canvassers to determine and certify re- sult 884,385 No jurisdiction in equity to enjoin holding of an election . . 386 Injunction not allowed to restrain counting of illegal votes . . 387 But may issue to restrain the receipt of illegal votes .... 388 Will not lie to restrain recording of abstract of votes co gjround of fraud 389 Mandamus in State court to compel canvass of votes cast for Representative in Congress 390 Trial by jury not allowed 891,392 Quo warranto, when issued at common law 393 Mode of proceeding 394 Right of elector to contest, given by statute, does not oust juris- diction in quo warranto 395 CONTENTS. XIX Quo warranto not granted merely upon showing that illegal votes have been received § 396 Discussion as to proper remedy in various cases 397-413 Remedy by mandamus and by quo warranto 397-400 Mandamus to compel county oflScer to keep oflSoe at county seat 401 Mandamus not granted when there is another adequate and spe- cific remedy 403,403 Nor to oust the incumbent of an ofiice 404 Nor to control the performance of judicial duties .... 405, 416 But is sometimes granted to compel swearing in of person elected 406 Or to compel recognition of person adjudged elected . . • 406, 409 "Will lie to compel discharge of purely ministerial duties . . 406-411 Mandamus to compel appointment in certain cases 410 Also to compel canvass in accordance with original and genuine returns 413 No answer to writ to show that returns are irregular . . , , 413 Granting or refusal of writ discretionary with the court . . . 414 Oflfice of the writ of mandamus 415 Decision of board of canvassers conclusive in collateral proceed- ing 417 Certificate of election issued under mandamus not conclusive 418, 419 Will lie to compel registration of legal voter 430 Not generally issued to compel certificate showing election of particular person 431 General rules stated 433, 433 CHAPTER XIII. CONTESTED ELECTIONS — PROCEDURE. Practice usually governed by local statutory regulations or rules of legislative bodies § 434 Information in quo warranto 425 Notice 426 Must be served within time prescribed . 437 Rule for computing time 438 Specification in notice of grounds of contest 439 Names of illegal voters need not be stated 429 Proof of service of notice 430 Statutes providing for contesting elections to be liberally con- strued 481 The claimant must set forth a meritorious case 433 Mode of verifying grounds of contest ......... 433 Requisites of petition under Ohio statute 434 Application for recount of ballots 485 Statutory mode must be followed 446 XX CONTENTS. Requisites of pleading § 437-439 Certainty to common intent only required 440 Amendments must be made without delay 441-443 Pleadings in special statutory proceedings 444 What issues may be tried 445 No judgment by default in the United States House of Repre- sentatives 446, 447 Mode of proceeding in contested election cases in the United States House of Representatives 448-450 Importance of riJe requiring sitting member to proceed with dil- igence 451 Extension of time for taking of testimony 453,453 Parties not allowed to discontinue or compromise . . , , . 454 Interest of the people in contested election cases 455 Continuances not generally allowed 456 Where contestee dies pending contest, proceedings binding on his successor 456a State law followed in Congressional contests 457 Result of a criminal prosecution not considered as binding on the House 457a CoBts . 458 CHAPTER XIY. CONTESTED ELECTIONS — EVIDENCR Ordinary rules of evidence apply • • § 459 Presumption as to oflBcial integrity 459 Record evidence 460 State laws rules of decision in Congress 461 When necessary to prove number of qualified electors in given territory 462 Census of population 463 Official list of freeholders under Virginia statute 464 Land books of the county under same 465 Official list of registered voters 466 Vote accepted by the judges of election pWma/acte legal . . 466a Presumption that person alien born who has voted was qualified 467 Want of naturalization, how established 468 Fraudulent naturalization papers 468 May be attacked by parol evidence 469 Proof of non-residence 460 Registration not conclusive of right 470 Ballots as evidence 471 Provisions for safe keeping must be strictly followed .... 472 Rule as to proof that ballots have not been tampered with . 478, 474 CONTENTS. XXI Construction of statutes requiring preservation of ballots . . § 475 Recount 476, 477 When ballots lose their character as primary evidence . • . 478 Loss or destruction of ballots, secondary evidence 479 Judge Cooley's views 480 Importance of rule requiring proof of preservation and produc- tion of the identical ballots cast 481 Inspection of ballot, when ordered 482 Correction of return by reference to ballot 483 Declarations of illegal voters as to how they voted .... 483, 484 Conflict of authority as to their admissibility 484 The English rule 484 Rule in New York and Wisconsin 484 Decisions in other States 484 Discussion of the question in the House of Representatives of the United States , , 485-487 Preservation of secrecy of ballot 488, 489 Voter cannot be compelled to divulge for whom he voted . 489-491 But this rule does not protect one who votes illegally . . . 492-494 Voter may waive his privilege 492 Circumstantial evidence admissible 498 Rule as to disposition of illegal votes in the absence of proof showing for whom they were cast 495 When new election should be ordered 496 Consequences of neglect to furnish proof within reach of party 497 Ballots marked in violation of law generally admissible . . . 498 Character of proof required to vitiate a vote received and counted by the election board 499 Weight to be given to decision of judges of election .... 500 Canvass by city council jprima /acie evidence 501 General rule for solving questions of evidence in contested elec- tion cases 502 Returns and election papers may be impeached upon quo war- ranto 503 Parol evidence admissible to impeach 503 Tally-sheets, if required by law to be kept, admissible in evi- dence 504-506 Poll books prima facie evidence only 507 May be impeached for fraud 507 Return must be signed 508 Held admissible for some purposes, though unsigned, if other- wise proved 509 Effect of entire disregard of the law by election officers . . 510, 511 Evidence of appointment of inspectors of election 512 Proof of true vote by secondary evidence 518 XXll OONTENTS. Correction of final return by reference to primary returns . . § 513 Absence of oath will not vitiate return 514 Rule as to setting aside returns 515 Illustrations 515-517 Distinction between rejecting return and setting aside election . 518 State statute regulating elections not binding upon Congress . 519 But decisions of State tribunals under such statutes prima facte evidence 520 Rules as to proving votes when return has been rejected . . . 521 Failure of the oflBcers of one of several precincts to make return 522 Rule as to rejection of entire poll 523, 524 Proof that oflBcers of election were not sworn 525 Proof of alteration of return 526 Not necessary to show intentional wrong on part of election offi- cer in rejecting vote 527 Rule in House of Representatives as to counting votes of legal voters rejected at the polls 527a Rule in Arkansas and other States .......... 257& CHAPTER XV. IMPERFECT BALLOTS. Incorrect spelling of names and the like • • . § 528 Imperfect ballot may be explained by parol proof . • • • . 529 The true rule upon the subject 530 Ambiguous ballot — Surrounding circumstances shown to explain voter's intent 530, 581 Illustrations 530 The rule as stated by Judge Cooley 530 Ballots containing a greater number of names than there are oflSces to be filled 532,533 Ballots written or printed on several pieces of paper .... 534 Ballots marked in violation of statute 535, 536 Statutes forbidding distinguishing marks, when mandatory . . 537 Eflfect of statute regulating size and form of ballot 538 What is a " distinguishing mark " upon a ballot 539 Construction of statute of North Carolina 539a Construction of statute of Alabama 539b Construction of statute requiring indorsement upon ballot of name of office voted for 540 Ballot may be bad in part and good as to remainder .... 541 Repetition of name of candidate • • . 542 Distinction between ambiguous and void ballots 542 Ballot may be explained, but cannot be contradicted .... 543 Writing prevails over print 543 CONTENTS. XXlll Rule as to admissibility of evidence aliunde to explain ballot . § 544 Courts not bound by rules which govern canvassers .... 545 Illustrations 546 The term " written " includes what is printed 547 Constitutionality of statutes requiring ballots to be numbered . 548 Substantial compliance with statute as to form of ballot suffi- cient 549 Missouri decisions upon this subject 549a CHAPTER XYL VIOLENCE AND INTIMIDATION. Fairness, purity and freedom of elections must not be interfered with § 650 Slight disturbances will not vitiate election 550, 551 Bule stated 651 Interference by the military 552 Surrounding polls by military force 553 Stationing troops in the vicinity of the election 554 Misconduct of soldiers stationed near voting place .... 555-557 Duty of House of Representatives to inquire into charges of in- timidation 558,559 Violence and intimidation affecting a part only of the district in which the election was held 560, 561 Burden of proof where intimidation is shown 560a General rules upon the subject stated 562-564 It must be shown that the violence and intimidation affected re- sult 565 Evidence of intimidation •.... 566 Importance of preserving freedom of elections 567 Calling out militia on election day • . . . . 568 CHAPTER XYII. IMPEACHMENT OF RETURNS FOR FRAUD OR ILLEGAL VOTING. Return, if free from fraud, the best evidence; but may be im- peached § 569,570 Nature of impeaching proof required 571 Effect of rejecting return 571 Fraudulent return must fall to the ground 571 Dangers attending rejection of return 571 Character of parol proof which may be admitted .... 572, 573 Fraud by officers and by other persons 574 Circumstantial evidence tending to show fraud ..•••• 575 XXIV CONTENTS. Effect of proof of fraud which does not change result .... § 575 Check list as evidence 577 Not necessary to show that officers participated in fraud . . . 578 Evidence aliunde the return 578 What acts of election officers will constitute fraud 579 Presence of unauthorized persons at the place of canvassing votes 580 Return not rejected on account of illegal votes received if they did not change the majority 581 Proof that vote cast was largely in excess of number of legal voters 582 Disregard of law sufficient to shift burden of proof 583a Other circumstantial evidence of fraud 583 Fraudulent naturalization certificates 684 CHAPTER XYIII. PROSECUTIONS FOR VIOLATIONS OF ELECTION LAWa Statutory remedy exclusive § 585 Whether the crime of illegal voting can be punished at common law, query 585, 586 Decision of the question in Massachusetts 585 Ruling in Ohio 585 Conflict of authority as to necessity for showing that defendant had knowledge of his disqualification 587, 588 Liability of person voting upon void certificate of naturaliza- tion 589,590 Rule where qualification of voter is question of doubt . . . 590-593 What constitutes the completed act of illegal voting . , . 593, 594 Liability of minor who votes believing he is of age 595 No conviction unless election was authorized by law . . . 596, 597 Construction of statute punishing the offense of voting " without being duly qualified " 598 Character of question decided by election officer to be consid- ered 599,600 Liability for fraudulently appointing illiterate inspector of elec- tion 599 Distinction between discretionary and quasi-jndicial powers of election officers 600 Mere irregularity in manner of conducting election no defense . 601 Advice of friends cannot be shown in defense 608 Nor can a favorable decision by officers of election upon defend- ant's right to vote 602 Requisites of an indictment for illegal voting 603 Indictment must advise defendant definitely as to nature of charge against him 604, 605 CONTENTS. XXV Not always sufficient to follow words of statute .... § 606, 607 Illustrations 606-614 Case in Tennessee 606 In general disqualifications must be specified 608, 613 Not necessary to aver that election was held by the proper officers 609 Nor what particular officers were to be chosen at the election . 610 Officer not liable to mistake of judgment under statute of Penn- sylvania 611 Indictment for voting more than once at same election . . , 612 Must state where illegal vote was oast , 614 Presumption 615 Advice of counsel 616 Case in Massachusetts 617 Burden of proof to show non-residence is upon the Commonwealth 618 Def en dant's statement at time of voting not admissible in evidence 619 CHAPTEK XIX. LEGISLATIVE BODIES — THEIR ORGANIZATION AND JUDI- CIAL POWERS. Importance of established rules governing organization ... § 620 Members holding usual credentials entitled to participate in or- ganization 621 Temporary organization 622 Statutory regulations 623 No general business until members have been. sworn .... 624 Power of Houses of Congress over election, returns and qualifica- tions of their members 625 Powers and duties of clerk of lower House of Congress . . . 626 Division of legislative body which ought to be a unit .... 627 Rule for determining which is the legal organization . . . 698, 629 Distinction between supreme and subordinate legislative bodies 628 Power of courts over the latter 628 Important case in Pennsylvania 628 Question between rival bodies each claiming to be Legislature . 629 Decision of United States Senate 629-631 Power of legislative body to preserve order and decorum . . . 622 Duty of presiding officer 633 Power of Houses of Congress over their members 634 Expulsion 684,635 Jurisdiction to inquire into acts done before election . . . 635, 636 Power to punish for contempt 637 Power over witness summoned before them 637, 638 Power of legislative bodies generally over witnesses .... 638 Refusal of witness to answer questions 639 Act of Congress of January 24, 1857 639 XXVI CONTENTS. Power of House and of courts under said act § 689, 640 Power of legislative body to punish for contempt not general, but limited 640 Decision of Supreme Court of the United States in Kilbourne v. Thompson 640 CHAPTEE XX. CORPORATE ELECTIONa Corporations governed by stockholders § 641 Each shareholder entitled to one vote for each of his shares of stock unless otherwise provided 648 Qualifications for voting in a corporation 643 Interest of stockholder in general no disqualification .... 643 Limitation of this rule • 643 Rights of stockholders 644 Equitable assignment of stock 645 Right to vote not limited to natural persons 645 Qualification of rule that legal holder of shares may vote upon them 646 Corporate transfer book as evidence of title 647, 648 Rights and duties of persons holding stock as trustees .... 649 Contract of membership, when complete 650 Mode of conducting stockholders' meetings ....... 651 Notice 652 How given 653 May be by statute, charter, by-laws or standing rules, as well as by publication 653, 654 Mandamus to compel calling of election 654, 655 Election must be held at reasonable time and place .... 656 Adjournment 657 Validity of corporate meeting held beyond borders of State creat- ing the corporation 658, 659 Voting by proxy unknown at common law 660 But now generally recognized 660 Conduct of corporate election 661, 662 Illegal voting 663 Cumulative voting 664 Cannot be forced upon corporations after their organization . 664, 667 Election of directors 665 Right to vote for less than whole number 665, 666 Votes for disqualified or ineligible candidate 668 Failure to elect officers at proper time 669 Tenure of officers of corporation 670 Holding over 670 Remedies for illegal corporate elections 671 CONTEi?TS. XXVll CHAPTER XXI. STATUTORY REGULATION OF ELECTIONS. Importance of the subject § 673, 673 Evils of crowding the polling places * 674 Multiplication of voting precincts 675 Complete registration ■ . . 676 Non-partisan election boards 677 Presence of witnesses representing all parties 677 Counting of votes without delay 678, 679 Protection of voters against intimidation and violence . . . 680 Fraudulent ballots 681 Regulation as to size and form of ballot 681 Summary of necessary provisions 682 Existing statutes 683-689 Recent act of Kansas Legislature to prevent crowding at polls , 684 Provisions against counting ballots so printed as to mislead voters 690 CHAPTER XXII. THE AUSTRALIAN BALLOT SYSTEM. Origin of the system and introduction in other countries ... § 691 Introduction in the United States 692 Provision for an official ballot 693 Directions governing printing of ballots 694 Size and style of, and arrangement of names upon the ballots . 695 Rule where one candidate is named for same office by two or more parties 696 Manner of nominating candidates and filing certificates of nom- ination 697 Duty of Secretary of State when certificates of nomination are filed by rival factions of a party 698 The limitation of the right to have ballots printed at public ex- pense and to have names of candidates printed thereon, not unconstitutional 699 Right of the voter to vote for the person of his choice .... 700 Right of a political convention to delegate authority to make nominations 701 A candidate nominated by individual electors not the nominee of a political party 702 Nomination papers; how signed 703 Mass conventions not prohibited in Minnesota 704 Provisions of the statute concerning certificates of nomination; mandatory or directory 705 XXVm CONTENTS. Other provisions liberally construed § 706 What constitutes filing of certificate of nomination .... 707 Petitioners may proceed by mandamus to compel oflBcer to cer- tify the name of a candidate 708 Efifect of wrongful certificate as to a part of the candidates upon the ballot 708 Certificates for filling vacancies 709 Printing and distribution of sample ballots 710 Sample ballots voted by mistake; effect of 711 Appointment of judges, clerks, challengers and watcheiis . , . 712 Voting compartments 713 Act of voting; how accomplished 714 Provision requiring voter to prepare ballot in voting compart- ment 715 Provision requiring initials of two judges of opposite parties upon the ballot not mandatory 716 The requirement that the ballot must bear the initials of a judge of election held unconstitutional in Nevada 717 Assistance to disabled voters 718 Assistance, how rendered 719 Provisions defining manner of marking ballot generally held to be mandatory 720 Use of distinguishing marks 721 Effect of marks accidentally made 722 Effect where voter writes his name upon the ballot .... 723 General principle applicable in determining whether provisions are mandatory or directory 724 Primary elections in Kentucky held under Australian system . 725 Separate ballots and ballot-boxes provided for women in some States 726 General provisions for the prevention of fraud 727 Use of voting machines authorized in Michigan and New York . 728 Voting machines; how constructed and operated 729 Appendix Page 529 Elective Franchise "531 Election of Senators " 540 Election of Representatives " 541 Organization of Meetings of Congress " 548 Contested Elections " 544 Presidential Elections " 550 Residence as a Qualification for Voting " 557 Index "565 TABLE OF CASES CITED. References are to sections. A. Abbott V. Frost (2 Bart. 594), 203, 216. Aokerman v. Haenck (147 IlL 514), 63, 223. Acorn, The (2 Abbott, U. S., 434), 76. Adam v. Mengel (8 Atl. Rep. 606), 71, 336. Adams v. Wilson (CL & H. 373), 546. Adams v. Woodbridge (4 IlL 255), 219. Adsit V. Secretary of State (84 Mich. 420), 228. Ah Yup, In re (5 Sawy. 155; s. a, 6 Cent Law J. 387), 71. Albert v. Twohig (35 Neb. 583), 478. Alden v. Hinton (6 N. D. 217), 293. Allen V. Glynn (17 Colo. 338; 29 Pac. Rep. 670), 225, 705, 706. Allen V. Hill (16 Cal. 113), 649. Allison V. Blake (57 N. J. 6), 49. 59. Alvord V. Collin (20 Pick. 428), 216, 333. American Ins. Co. v. Canter (1 Pet 540), 13. American Railway Frog Co. v. Haven (101 Mass. 398), 671. Anderson v. Baker (23 Md. 531; s. C, Bright. Elec. Cas. 194), 3, 4, 5, 24, 26, 46, 289. Anderson v. Colson (1 Neb. 172), 402. Anderson v. Dunn (6 Wheat 204), 637, 640. Anderson v. Milliken (9 Ohio St ■ 568), 289. Anderson v. Santa Anna (116 U. S. 356), 658. Anderson v. Tyree (Utah, 42 Pao. Rep. 201), 34, 63. Anderson v. Winfree (85 Ky. 597), 172. Andrews v. Heme (1 Lev., EL B., 33), 218. Andrews v. Judge of Probate (74 Mich. 278), 71, 369, 474. Andrews v. Lancier (13 La. Ann. 301), 240. Anonymous (4 Leg. Obs. 98), 82. Anthony v. Halderman (7 Kan. 50), 36. Appeal of Cusick (136 Pa. St 439, 459), 127, 140, 141, 227. Appointment of Supervisors, In re (52 Fed. Rep. 254), 126. Apple V. Bancroft (158 IlL 649), 473, 542. Applegate v. Egan (74 Mo. 258), 589, 549a. Archer v. Allen (1 Bart 169), 477. Arnold, Ex parte (128 Mo. 256), 489. Arnold v. Lea (CL & H. 601), 229. Arris v. Stukely (2 Mod. 260; s. C, 1 Selw. N. T. 68), 367. Arrison v. Cook (6 D. C. 335), 416. Ashby V. White et aL (2 Ld. Raym. 938; 1 Smith's Lead. Caa 472), 9, 291. Ashfield's Case (Cush. Elec. Cas. 583), 541. Aspinwall v. Ohio, etc. R. R. (20 Ind. 492, 497), 65a XXX TABLE OF CASES CITED. Beferences are to sections. Atkinson v. Lay (115 Mo. 538; s. C, 22 S. W. Repi 481), 702,706, 708. Atkinson v. Loebur (111 CaL 419), 580. Atkinson v. Pendleton (Row. 45), 478, 600. Attorney-General y. Barstow (4 Wis. 749), 264 Attorney-General v. Connors (27 Fla. 329), 335. Attorney-General v. Detroit (78 Mich. 545), 65. Attorney-General v. Ely (4 Wis. 420), 529, 532. Attorney-General v. Glaser (103 Mich. 396), 537. Attorney-General v. Howcraft (Mich., 64 N. W. Rep. 654), 731. Attorney-General v. Mars (99 Mich. 538), 144 Attorney-General v. Marston (66 N. H. 485), 335. Attorney-General v. May (99 Mich. 538), 495. Attorney-General v. McQuade (94 Mich. 439), 48a Augustin V. Eggleston (12 La. Ann. 366), 306, 565. B. Babbitt, A. W., Case of (1 Bart 116), 244 Bacon v. Benchley (2 Cush. 100), 297. Bacon v. York County (26 Me. 491), 264 Baird v. Bank (11 a & R 411), 251. Baker's Appeal (109 Pa. St 461), 667. Baker v. Long (17 Kan. 341), 445. Baker and Yell, Case of (1 Bart 92), 337, 34a Bildwin V. Trowbridge (2 Bait 46X 153, 156. Baltimore v. Fledderman (67 Md. 161), 369. Bard's Case (CL & H. 116), 513. Barker, In re (6 Wend. 509), 645, 649, 660. Barker v. People (20 Johns. 457), iia Barker v. Pittsburg (4 Barr, Pa., 49), 36a Barnes v. Adams (2 Bart 760), 249, 50a 510, 514 Barnes v. Supervisors (51 Miss. 305), 136, 225. Barney v. McCreery (CL & a 167), 333. Barry v, Louck (5 Coldw. 588), 181. Barton v. Himrod (8 N. Y. 483), 197. Bassett v. Bay ley (CL & H. 254), 375. Batesville Inst v. Kaufifman (18 Wall. 151), 350. Bath V. Reed (78 Me. 276), 349. Batman v. Megowan (1 Met, Ky., 533), 379, 428. Batterman, In re (14 Misa 213), 103. Batterton v. Fuller (S. D., 60 N. W. Rep. 1071), 429. Batturs v. Megary (1 Brewst 162), 429, 439, 53a Baxter v. Brooks (29 Ark. 173), 380. Baxter v. Ellis (111 N. C. 124), 537. Beach, Case of (1 Bart 391), 169. Beal V. Ray (17 Ind. 554), 184 Beall V. Albert (159 IlL 126), 472. Beardstown v. Virginia (81 IlL 541), 96, 97, 479, 484 Bechtel v. Albin (134 Ind, 193; & C., 87 Pac. Rep. 16), 720. Beck V. Board of Election Commis- sioners (103 Mich. 192), 211. Beck V. McGhee (1 Zab., N. J., 317), 158. Beckett v. Houston (32 Ind. 393), 64a Behrensmeyer v. Kreitz (135 IlL 591), 75, 76, 84, 88, 222, 530. TABLE OF OASES OITED. ZXXl References are to sectiosiB. Belknap v. Board of Canvassers (94 Mich. 516), 412. Bell V. Snyder (Smith, 247X 482, 491, 527a. Belles V. Burr (76 Mich. 1), 63. Benford v. Gibson (15 Ala. 521), 368. Bennett v. Chapman (1 Bart. 204), 93, 204. Berry v. Hull (N. M., 30 Pac. Rep. 936), 71, 88, 429. Berry v. McCullough (94 Ky. 247), 176. Berry v. Wilcox (44 Neb. 82), 88, 102. Bevard v. Hoffman (18 Ind. 474), 289, 600. Bew V. State (71 Miss. 1), 126. Biddlo V. Richards (CL & H. 407), 342. Biddle v. Wing (CL & H. 504), 90, 91, 167, 524, 558. Birmingham v. Locke (1 Q. B. 156), 648. Bisbee v. Hull (1 Ells. 315), 418. Bisbee v. Finley (2 Ells. 172), 449, 467, 474, 493, 523, 527a, 558. Blackwell v. Thompson (2 Stew. & Port. 348), 594. Blair v. Barrett (1 Bart. 318), 248, 249, 464, 571. Blair v. Ridgley (41 Mo. 161, 175), 4, 6, 19, 28, 52, 53. Blanchard v. Stearns (5 Met. 298), 289. Blankenship v. Israel (132 111. 514), 88, 227, 543. Blight V. Rochester (9 Wheat 535), 79a. Blitz V. United States (153 U. S. 308), 603. Blockley Election (2 Pars. 534), 540. Bloomer v. Todd (1 L. R. A. Ill), 46. Blue V. Peter (40 Kan. 701), 571. C Board of Canvassers, In re (13 N. Y. Sup. 174), 268. Board of Education v. Welch (51 Kan. 792), 412. Board of Supervisors v. Judge of Wayne Co. (Mich., 64 N. W. Rep. 42), 316. Bolano v. People (25 Hun, N. Y., 423), 259. Boles V. Edwards (Smith, 18), 451. Bolton V. Good (41 N. J. Law, 296), 181. Bonner v. State (7 Ga. 473), 402. Bonzano, Case of (3 Bart. 1), 188. Bookner v. Gordon (81 Ky. 665), 49. Borleau's Case (2 Pars. 503), 223. Botkin V. Maginnis (Mob. 377), 228. Botts V. Jones (1 Bart. 73), 461. Bourland v. Hildreth (26 Cal. 161), 156. Bowen v. Buchanan (Row. 193), 565. Bowen v. Hixon (45 Mo. 340), 267, 427. Bowers v. Smith (111 Mo. 45), 225, 284, 700, 705. Bowling v. Turner (78 Md. 595), 96. Boyd V. Mills (53 Kan. 594), 236, 536, 711. Boyd V. Thayer (143 U. S. 135), 79a, 84, 85a. Boyden v. Shober (2 Bart. 904), 174. Boyer v. Teague (106 N. C. 576), 493. Boynton v. Loring (1 Ells. 346), 429, 530. Bradley v. Slemans (1 Ells. 296), 448. Bradwell v. State (17 Wall. 140), 35. Braidy v. Theritt (17 Kan. 468), 254. Brewster v. Hartley (37 Cal, 15), 651. Bridgeport v. Railroad Co. (15 Conn. 475), 208. Bright, Case of (1 Bart. 629), 151. Brockaway v. Gadsden Min. Land Co. (102 Ala. 620), 658. xxxn TiJBLE OF CASES CITED. References are to sections. Brookenbrough ▼. Cabell (1 Bart. 79;, 201. Bromberg v. Harralson (Smith, 355), 429, 550, 557. Brooks V. Davis (1 Bart. 244), 449. Brower v. O'Brien (2 Ind. 423), 263, 418, 421. Brown v. Commonwealth (Pa., 3 Grant's Cases, 209), 660. Brown v. Commonwealth (Bright. Elec. Cas. 282), 175. Brown v. Humraell (6 Pa. St. 86), 4. Brown v. McCallum (76 Iowa, 479), 530, 54a Brown v. Phillips (71 Wis. 239), 65. Brown v. Rush County Commis- sioners (38 Kan. 436), 264. Brown v. Union Ins. Co. (3 La. 177, 182), 655. Bruce v. Loan (1 Bart. 482), 550, 551. Buchanan v. Manning (3 Ells. 287), 527a, Buckner v. Lynip (Nev., 41 Pac. Rep. 762), 721. Bull V. Southwick (2 New Mex. 831), 264 Bunn V. Riker (4 Johns. 428), 319. Bunting v. Willis (27 Grat. 144), 348, 352. Burch V. Van Horn (3 Bart. 305), 1, 55, 457. Burke v. Monroe County (4 W. Va, 371), 399. Burkett v. McCarty (10 Bush, Ky., 758), 123, 124 Burleigh v. Armstrong (Smith, 89), 89, 92. Burnham v. Morrisey (14 Gray, 226), 637. Burt V. Winona (31 Minn. 472), 255. Busey v. Hooper (35 Md. 27), 671. Butler V. Lehman (1 Bart 353), 471. Butterworth's Case (1 Woodb. & M. 323^. 73. Byington v. Vandever (1 Bart. 895), 337, 348. Byler v. Asher (47 111. 101), 141. Bynum v. Commissioners (101 N. C. 413), 389. Byrne v. State (12 Wis. 519), 592. a Caignet v. Pettit (2 Dall. 234), 21. Calder v. Bull (3 DalL 394), 29. Calvert v. Whitmore (45 Kan. 99X 531. Camden Ry. v. Elkins (37 N. J. Eq. 373), 671. Camp V. Byrne (41 Mo. 525), 659. Campbell v. Gordon (6 Cranch, 176), 84 Campbell v. Morey (Mob. 215), 101, 495. Campbell v. Weaver (Mob. 455), 140, 141. Cancellation from Registry List, In re (141 N. Y. 112), 63a, 65. Cannon v. Campbell (2 Ells. 604), 823, 328, 625. Capen v. Foster (12 Pick. 485), 127, 130, 289. Carleton v. Whitcher (5 N. H. 196), 333. Carlisle v. United States (16 Wall. 147), 125. Carlton v. People (10 Mich. 350), 355. Carpenter's Case (3 Pars. 540), 328, 437. Carr v. State (111 Ind. 101), 355. Carrothers v. Russell (53 Iowa, 346), 216, 333. Carson's Case (3 Lloyd's Debates, 23), 375. Carson v. McPhetridge (15 Ind. 327), 339. Carter v. Harrison (5 Blackf. 138), 289. TABLE OF CASES CITED. XXXUl References are to sections Carter v. Putnam (141 111. 133), 99. Carter Gas Engine Co. v. Carter (47 111. App. 86), 653. Casement, Case of (3 Bart. 516), 345. Castello V. St. Louis Circuit Court (38 Mo. 859), 437. Catlin r. Smith (3 S. & R. 367), 107. Caulfield v. Bullock (18 B. Mon. 494), 389. Cawley v. People (95 111. 349), 345. Cecil, In re (36 How. Prac. 477), 660. Cessna v. Myers (Smith, 60), 101, 485. Chadwick v. Melvin (Bright. Elec. Cas. 351), 158, 163, 584. Chalmers v. Manning (Mob. 7), 303. Chamberlain v. Woodin (3 Idaho, 609), 569. Chandler, Case of (1 Bart 530), 169. Chandler v. Bradish (83 Vt 416), 670. Chandler v. Main (16 Wis. 398), 156. Chapman v. Ferguson (1 Bart. 867), 513, 531. Chase v. Miller (41 Pa. St. 404), 98, 156. Chavis V. Clever (8 Bart. 467), 303. Chester R. R. Co. v. Caldwell Co. (78 N. a 486), 810. Chirac v, Chirac (3 Wheat 859), 70. Chisholm, Ex'r, v. State of Georgia (3 Ball. 463), 15. Chrisman v. Anderson (1 Bart 388), 867, 508. Churchwarden's Case (Garth., Eng., 118), 405. Cincinnati, etc. R. R. v. Commis- sioners (1 Ohio St. 84), 197. City of Owensboro v. Hickman (90 Ky. 639), 139. Clanton v. Ryan (14 Colo. 419), 483. Claridge v. Evelyn (5 B. & A. 8), 337. Clark's Case (Smith, 6), 305. Clark, Ex parte (100 U. S. 399), 48, 144, 191. Clark V. Buchanan (2 Minn. 346), 868. Clark V. Hall (1 Bart 215), 304, 848. Clark V. Hampden Co. Ex'r (136 Mass. 383), 400. Clark V. McKenzie (7 Bush, Ky., 533), 370, 399. Clark V. Robinson (88 HL 498), 115, 141. Clayton v. Breckenridge (Row. 679), 457a. Clements' Case (1 Bart. 366), 170, 305. Cleland v. Porter (71 111. 76), 163. Clinton Co. Election (3 Pa, Law J. 160), 536. Cloud V. Wing, Case of (1 Bart 455), 169. Cochran v. Jones (14 Am. Law Reg., N. S., 333), 344. Coflfey V. Edmunds (58 CaL 531), 539. Coffin V. State (7 Ind. 157), 368. Coflfroth V. Kountz (8 Bart. 35, 138, 358), 304, 318, 314. Cogland v. Beard (65 Cal. 58), 478. Golden v. Sharpe (CI. & H. 369), 386. Coleman, In re (15 Blatch. 486), 79. Coleman v. Gernet (14 Pa, Co. Ct Rep. 578), 730. Coleman v. Sands (87 Va. 689), 353. Collins' Case (Bright Elec. Cas. 513), 454. Collins, In re (64 How. Pr., N. Y., 68), 98. Collins V. Tracy (36 Tex. 546), 355. Colt V. Eves (13 Conn. 848), 883. Commissioners v. Harper (38 111. 108), 664. Commonwealth v. Aglar (Bright. Elec. Cas. 695; s. C, Thach. Cr. Cas. 418), 587. xxxiv TABLE OF OASES CITSD. References are to sections. Commonwealth v. Ayer (Cush. Elec. Cas. 674), 607. CJommonwealth v. Baxter (35 Pa. St 213, 268), 317. CJommonwealth v. Binghurst (103 Pa. St. 134), 660. Commonwealth v. Bradford (9 Met 268), 616, 617, 618. Commonwealth v. Chapman (1 DalL 53), 21. Commonwealth v. Clary (8 Mass. 72), 89, 17a Commonwealth v. Cluley (56 Pa. St 270), 329, 33L Commonwealth v. Commissioners (5 Rawle, 75), 158, 816, 397, 406, 409, 503. Commonwealth v. Commissioners (6 Whart 476), 402. Commonwealth v. Connelly (163 Mass. 539; s. a, 40 N. K Rep. 862), 703. Commonwealth v. Cullen (13 Pa- st 133), 652. Commonwealth v. Ely (Bright Elecj. Gas. 258), 532. Commonwealth v. Emminger (74 Pa. St 479), 262. Commonwealth v. Gail (10 Bush, Ky., 488), 593, 594, 62a Commonwealth v. Grarrigues (28 Pa. St 9), 380, 386, 387. Conmionwealth v. Gray (2 Duv. 373), 607. Commonwealth v. Hanley (9 Pa. St 513), 349. Commonwealth ▼. Jones (14 Am, Law Reg., N. S., 374), 344 Commonwealth v. Jones (12 Pa. St 365), 334. Commonwealth v. Leary (1 Brewst 270), 77. Commonwealth v. Lee (1 Brewst 273; & a. Gush. Elec. Cas. 98), 77, 61 L Commonwealth v. Leech (44 Pa St 332), 380, 392. Commonwealth v. Maddox (Ky,, 32 S. W. Rep. 129), 60a Commonwealth v. Maxwell (27 Pa. St 44), 58. Commonwealth v. Miller (Bright. Elec Cas. 711; s. c, 2 Pars. 480), 607. Commonwealth v. McClelland (83 Ky. 686), 128, 129. Commonwealth v. MeCloskey (Bright Elec. Cas. 196; & a, S Rawle, 369), 375. Commonwealth v. McHale (97 Pa. St 397), 585. Commonwealth v. Read (2 Ash. 261), 167, 16a Commonwealth v. Reeder (Pa., 33 K R. A- 141), 212. Commonwealth v. Shaver (Bright Elec Cas. 134; s, G, 3 W. & S. 338), 332. Commonwealth v. Shaw (7 Mete 52), 614. Commonwealth v. Sheriff (1 Brewst 183), 77, 289. Commonwealth v. Silsbee (9 Mass. 417), 586. Commonwealth v. Smith (132 Mass. 289), 17a Commonwealth v. "Wallace (Thach- er's Cr. Gas. 592), 587. Commonwealth v. Woelper (28 S. & R 29), 536, 537. Conant Widow, v. Milandon (5 La. Ann. 542), 649. Congregational Society of Bethany V. Sperry (10 Conn, 200), 655. Conlin v. Aldrich (98 Mass. 557), 402. Contested Election, In re (6 Phila. 437), 540. Contested Election of McDonough, In re (105 Pa. St 488), 127, 141. TABLE OF CASES CITED. ZZXY References are to sections. Contested Election of School Di- rectors (165 Pa. St. 233; 30 AtL Rep. 955), 720. Cook V. Cutts (2 Ells. 243), 493. Cook V. Mock (40 Kan. 472), 182. Cook V. State (90Tenn. 407), 58, 126. Cope V. State (126 Ind. 51), 329. Copp V. Lamp (12 Me. 312), 653. Corbitt V. McDaniel (77 Ga. 544), 383. Cordiell v. Frizell (1 Nev. 130), 349. Corliss, In re (11 R. I. 638), 329. Costello V. St Louis Circuit Court (28 Mo. 259), 427. Council V. Rush (82 Mich. 532), 126, 699. County V. Johnson (95 U. S. 369), 208. Covode V. Foster (2 Bart. 600), 104, 113, 523, 527a, 575, 580. Cowan V. Prowse (93 Ky. 156), 71. Cowley V. People (95 IIL 294), 345, 121, 127, 215. Coy, In re (127 U. S. 731; S. C, 31 Fed. Rep. 794), 143, 257. Crabb v. Orth (133 Ind. 11), 483. Craig V. First Presb. Church (88 Pa. St. 42), 660. Craig V. Shelley (Mob. 373), 503. Crane v. Reeder (25 Mich. 303), 85a. Crawford v. Molitor (23 Mich. 341), 455. Crease v. Babcock (10 Met. 525), 649. Cregg, Ex parte (2 Curt. 98), 73. Crosbie v. Hurley (1 Ale. & Nap. 431), 367. Crowell V. Lambert (10 Minn. 369), 317. Cuddeback, Matter of (39 N. Y. Sup. 388; 3 App. Div. 103), 705. Cummings v. Missouri (4 Wall 277), 7, 53, 54, 55, 344 Curry v. Woodward (53 Ala. 371), 655. Currow v. Clayton (86 Me. 43; 29 Atl. Rep. 930), 720. Curtin v. Yocum (1 Ells. 416), 140, 22a D. Da Costa v. Jones (Cowp. 729), 318. Daggett V. Hudson (43 Ohio St 548; s. C, 1 West Rep. 789), 132. Dailey v. Estabrook (1 Bart. 299), 93, 253. Dailey v. Petroff (10 Phila. 389), 523. Dale V. Irwin (78 HL 170), 101, 102, 104, 141, 159, 436. Dalton V. State (1 West Rep. 773), 261. Darrell v. Bailey (3 Bart 754), 561. Davidson v. Grange (4 Grant's Ch., Up. Can., 377), 671. Davies v. McKeely (5 Nev. 304), 430. Da vies v. McKerky (5 Nev. 368), 56. Davis, G., Report of (1 Bart 55), 191. Davis V. State (75 Tex. 420), 47a Davy V. Savadge (Hobart, Eng., 87; s. c, 12 Mod. 687), 375. Day V. Jones (31 Cal. 261), 90, 156. Day V. Kent (1 Greg. 123), 228. Dean v. Field (1 Ells. 190), 308, 435. Delano v. Morgan (2 Bart 168), 247, 248. Dells V. Kennedy (49 Wis. 555), 13a Demming, In re (10 Johns. 233), 125. Dennett, Petitioner (32 Me. 508), 38a Dennis v. Caughlin (Nev., 41 Pac. Rep. 768), 535, 722. Dennis v. State (17 Fla. 389), 97. Deputy Marshals, In re (22 Fed. Rep. 153), 256. Desbois' Case (2 Mart 185), 85a Dew V. Sweet Springs District Court (3 Hen. & Mun. 1), 270. xxxvi TABLE OF CASES CITED. Beferences are to sections. De Walt V. Bartley (146 Pa. St 529), 129, 545, 699. Dial V. Hollandsworth (39 W. Va. 1), 222, 242. Dickey v. Hulburt (5 CaL 343), 161, 176. Dickey v. Reed (78 III 261), 386, 387, 436. Dishon v. Smith (10 Iowa, 212), 178, 216, 264. District Attorney, Case of (7 Am. Law Reg. 786), 364. District Attorney, In re (11 Phila. 645), 110. Dixon V. Orr (49 Ark. 288), 479. Dobyns v. Weadon (50 Ind. 298), 575. Dodge V. Brooks (2 Bart 78), 517. Doerflinger v. Hilmantel (21 Wis. 566), 429. Dores v. Varnon (94 Ky. 507), 225. Dorey v. Lynn (31 Kan. 758), 478. Double V. McQueen (96 Mich. 39), 417. Douglass V. Board of County Com- missioners (23 Fla, 419), 216. Douglass, Stephen A., Report of (1 Bart 47), 191. Dow V. Bullock (13 Gray, 136), 670. Downing v. Potts (8 Zab. 66), 648, 668. Draper v. Johnson (CL & H. 702), 110, 112, 114. 166, 173, 247. Drinkwater v. Deakin (L. R 9 C. P. 626), 668. Druliner v. State (29 Ind. 308), 539. Dryden v. Swinburne (20 W. Va, 89), 327. Dudley v. Kentucky High School (9 Bush, Ky., 578), 641. DuflSeld's Case (Bright Elec. Cas. 646), 426. Duffy, In re (4 Brewst 531), 241, 497. Duffy V. Mason (1 Ells. 361), 429. Duke V. Asbee (11 Ired. 112), 220. Duke V. Brown (96 N. C. 127), 210. Duncan, In re (139 U. S. 461), 34. Duncan v. Schenk (109 Ind. 26), 47. Durkee v. People (155 UL 354), 644. E. Eaking v. Raub (12 Serg. & R. 485), 4 Earle, Elias, Case of (CL & H. 314), 339. Easton v. Scott (CL & H. 272), 247. Eaton V. Brown (96 CaL 371 ; 31 Pac. Rep. 25), 700. Echols V. State (56 Ala. 131), 501, 504. Edwards, Case of (CL & IL 92), 362. Edwards v. Knight (8 Ohio, 375), 434. Edwards v. United States (103 U. S. 471, 474), 352. Egan V. Jones (21 Nev. 433), 437. Eggleston v. Strader (2 Bart 897); 250. Egly, In re (158 Pa. St 65), 158. Elbin V. Wilson (33 Md. 135), 301. Election Law, In re (9 Phila. 497), 90, 104 Election of Cape May Nav. Ca, In re (51 N. J. L. 78), 649. Election of Directors of Hudson & Mohawk R R Co., In re (19 Wend. 135), 661. Election of McDonough (105 Pa. St 488), 127, 141. Electors v. Bailey (CL & H. 411), 324 325. Elk V. Wilkins (112 U. S. 94), 81. Elkins V. Camden & Atlantic Ry. Co. (36 N. J. Eq. 467), 670, 671. Ellis Y. County Commissioners (2 Gray. 370), 407. Ellis V. Glaser (102 Mich. 405), 720. Ellis V. May (99 Mich. 538), 718, 719. TABLE OF CASES CITED. xxxvu References are to sections. Ellyson, Ex parte (20 Grat. 10), 381. English V. Peelle (Mob. 167), 489, 538. Enos V. State (131 Ind. 560), 399. Ens worth v. Albin (44 Mo. 347), 135. Etherington v. Wilson (L. R 20 Eq. 606), 668. Everett v. Smith (22 Minn. 53), 208, 462. Ewing V. Filly (43 Pa, St. 384), 308, 380, 392. Ewing V. Thompson (43 Pa. St. 372), 307. F. Farlee v. Runk (1 Bart. 87), 101. Farrow & Bigby, In re (3 Fed. Rep. 112; s. C, 4 Woods, 491), 364 Fenton v. Scott (17 Oreg. 189), 472, 532. Ferguson v. Allen (7 Utah, 263), 570. Ferguson v. Henry (Iowa, 64 N. W. Rep. 292), 472. Fernbacher v. Roosevelt (90 Hun, 441; 35 N. Y. Sup. 898), 702. Fields V Osborne (60 Conn. 544), 535, 539. Findley v. Bisbee (1 Ells. 74), 466a, 495, 496. Finley v. Walls (Smith, 367), 511. First Nat. Bank v. Asheville Fur- niture & Lumber Co. (116 N. C. 827), 656. First Parish v. Stearns (21 Pick. 148), 167, 581. Fishback v. Bramel (Wyo., 44 Pac. Rep. 840), 473. Fisher v. Dudley (74 Md. 242; 22 Atl. Rep. 2), 676. Flanders v. Hahn (1 Bart. 438, 446), 170, 188, 248. Fletcher v. Jetter (32 La. Ann. 401), 526. Foley V. Tyler (161 111. 167), 380. FoUett V. Delano (2 Bart 113), 430, 446, 448. 505. Force v. Batavia (61 111. 99), 181. Forsyth, Case of (CI. & H. 497), 325. Foster v. Covode (2 Bart. 519), 312. Foster v. Scarff (15 Ohio St. 532), 158, 177. Fouke v. Trumbull (1 Bart. 167, 619), 326. Fowler v. State (68 Tex. 30), 222, 227, 243. Fox v. AUensville, etc. Turnpike (46 Ind. 31), 661. Fox, Town of, v. Kendall, Town of (97 III. 72), 128. Frederick v. Wilson (Mob. 401, 406), 498, 506, 545. Freeman v. Lazarus (61 Ark. 247), 542. Freeman v. Machias Water Power (38 Me. 343), 658. French v. Lightly (9 Ind. 478), 106. Friend v. Hamill (34 Md, 298), 600. Frost V. Metcalf '1 Ells. 289), 527a. Fry V. Booth (19 Ohio St. 25), 163. Fuller V. Dawson (2 Bart. 126), 514. Fuller y Kingsbury (1 Bart 251), 246. G. Gandy v. State (82 Ala. 61), 603. Gandy v. State (10 Neb. 243), 120, 121. Gano V. State (10 Ohio St 237), 438. Garard v. Gallagher (11 Neb. 382), 458. Gardner v. Ward (2 Mass. 244), 21. Garland, Ex parte (4 Wall. 333), 125. Garrison v. Mays (Mob. 55), 123, 459. Garvey, In re (147 N. Y. IIT;, 103. Gates V. Delaware Co. (12 Iowa, 405), 352. XXXVUl TABLE OF OASES CITED. Beferences are to sections. Gauze v. Hodges (Contested Elea Cases in Cong. 1871 to 1876, p. 89), 276. Geebrick v. State (5 Iowa, 491), 197. Gee Hop, In re (71 Fed. Rep. 374), 71. Geissler, Ex parte (9 Biss. C. C. 492), 257. Gibbons v. Sheppard (2 Brewst 65; s. a, 65 Pa. St 36), 429, 440, 442. Gibbons v. Stewart (2 Brewst. 1), 523. Giddings v. Clark (Smith, 91), 266, 452, 498, 511, 553. Gilbert v. Abijah (41st Cong.), 152. Gilkey v. McKinley (75 Wis. 543), 22a Gilleland v. Schuyler (9 Kan. 569), 227, 484. Gillen v. Armstrong (12 Phila. 626), 110. Gillespie v. Dion (Mont, 44 Pac. Rep. 954), 434 Gillespie v. Palmer (20 Wis. 544), 289. Gilroy, In re (88 Me. 199), 74. Glandhill, Petitioner (8 Met 168), 72. Glasscock v. Lyons (20 Ind. 1), 367. Gleason v. Blanc (14 Misc. Rep. 620), 898. Goetchens v. Matthewson (58 Barb. 152; a a, 48 How. Prac. 97), 124. Goetchens v. Matthewson (5 Lans. 214), 299. Goggin V. Gilmer (1 Bart 70), 274. Goodell V. Baker (8 Cow. 286), 160. Gooding v. Brown (22 Fla. 437), 126. Gooding v. Wilson (Smith, 79), 267, 471, 499, 573. Goodman v. Bainton (84 Hun, 53), 101. Gordon v. State (52 Ala. 208), 595, 602, 608, 616. Gorham v. Campbell (2 CaL 135), 22& Goulding v. Clark (34 N. H 148), 654. Govan v, Jackson (32 Ark. 553), 432, 5276. Grafflin, Case of (1 Bart 464), 169. Graham v. Boston, etc. R. R. Co., (14 Fed. Rep. 753; s. a, 118 U. S. 161), 658. Greenleaf v. Lowe (4 Denio, 168), 251. Gregory v. King (3 Chic Leg. N. 349), 219. Grelle v. Pinney (62 Conn. 478), 222. Grenada Co. v. Brogden (112 U. S. 261), 658. Grier v. Shacklef ord (2 Brev., 2d ed., 549), 416. Grimble v. Green (134 Ind. 628), 424. Groesch v. State (42 Ind. 547), 198. Guild V. Chicago (82 III 472), 128. Gulick V. New (14 Ind. 93), 329. Gumm V. Hubbard (97 Mo. 312), 71, 431, 467, 531. Gunter v. Wilshire (Smith, 233), 448, 531. Guyou V. Sage (CI. & H 348), 238. H. Hacker v. Conrad (181 Ind. 444), 581. Hadley v. Albany (33 N. Y. 603), 267, 316. Hadley v. Guthridge (58 Ind. 302), 431. Hadoux V. Clark County (79 Va. 677), 181. Hagerty v. Arnold (13 Kan. 367), 269. Hale V. Evans (12 Elan. 582), 357. HaU V. Gavett (18 Ind. 390), 216, 333. TABLE OF OASES CITED. ^xx\^x References are to sections. Hall V. Schoenecke (128 Mo. 661; 81 S. W. Rep. 6), 101, 715. Hammond v. Haines (25 Md. 541), 198. Hammond v. Herrick (CI. & H. 387), 339. Hannah v. Shepherd (Tex., 25 a W. Rep. 137), 222. Hannon v. Grizzard (96 N. C. 293), 299, 306a. Hanscom v. State (Tex., 81 a W. Rep. 547), 535, 721. Harbaugh v. Cicott (33 Mich. 341), 97, 379, 334. Hardenburg v. Farmers', etc. Bank (3 Green, 68), 32a Harlan, Case of (1 Bart 621), 150. Harris v. Granville (4 Gray, 433), 466. Harris v. Whitoomb (4 Gray, 433), 290. Harrison v. Davis (1 Bart. 341), 550, 551. Harrison v Lewis (6 W. Va. 713), 443. Hartman v. Young (17 Oreg. 150), 471, 472. Hartt V. Harvey (33 Barb. 55), 367, 379, 331, 317, 537&. BEarwood v. Marshall (9 Md. 83), 403. Hawes v. Miller (56 Iowa, 395), 316, 531. Hawkins v. Carroll County (50 Miss. 735), 137, 310, 316, 463. Hays V. Commonwealth (82 Pa. St 518), 213, 664, 665. Heath, Ex parte (3 Hill, 47X 363, 282, 380, 405, 408, 52a Heath v. Mining Co. (39 Wis. 146), 659. Hendel v. Hayden (43 Neb. 760), 480. Henderson v. Albright (Tex. Civ. App., 34 a W. Rep. 993), 473. Henshaw v. Foster (9 Pick. 813), 289, 290. 547. Heyfron v. Mahoney (9 Mont. 497), 441, 495. Higbee v. Ellison (92 Mo. 13), 437. Higgs V. Charlevoix County Super- visors (62 Mich. 456), 417. Hill V. Rich Hill M. Co. (119 Ma 9), 652. Hilles V. Parish (14 N. J. Eq. 380), 658. Hodge V. Linn (100 111. 397), 227. Hogan V. Kurtz (94 U. S. 773), 79a. Hogan V. Pile (2 Bart. 281), 281, 28a Hoge V. Reed (3 Bart 540), 310. Hoge, John, Case of (CL & H. 185), 186. Holmes, Ex parte (5 Cow. 426X 649. Holmes v. Wilson (1 Ells. 323), 143. Hoppin V. Buffin (9 R. L 513), 645, 649. Houston V. Steele (Ky., 34 a W. Rep. 6), 222, 411, 537, 720. Howard v. Cooper (1 Bart 275), 247, 569, 571. Howard v. Shields (16 Ohio St 184), 503. Howard College v. Gove (5 Pick. 370), 67. Howe V. Freeman (14 Gray, 566; S. C, 7 Allen, 155), 658. Howe V. Perry (93 Ky. 360), 331a. Hubbard v. Williamstown (61 Wia 397), 181. Huber v. Reily (53 Pa. St 113), 46, 133. Hudson V. Solomon (19 Kan. 177), 471, 476, 478. Hughes, In re (3 Lack. Jur. 813), 107. Hughes V. Holman (23 Oreg. 481), 391, 471. Hulseman v. Rems (41 Pa. St 396), 317, 387. xl TABLE OF CASES CITED. References are to sections. Humphrey V. Kingman (5 Met 163), 109, 110, 289, 466. Hundley v. Commissioners (67 HL 559), 128. Hunt V. Chilcott (2 Bart 164), 320. Hunt V. Menard (2 Bart 477), 190. Hunt V, Richards (4 Kan. 549), 90. Hunt V. Sheldon (2 Bart 530, 703), 561, 563. Hunter v. Chandler (45 Mo. 453), 308, 316, 367. Hurd V. Romeis (Mob. 423, 429), 495, 523, 560a, 565, 574. Hurley v. Van Wagner (28 Barb. 109), 214. Hutchinson v. Woodruff (57 N. J. 530), 165. Hyde v. Melvin (11 Johna 530), 567. Inglis V. Trustees of Sailor's Snug Harbor (3 Pet 160), 21. Inhabitants of Cummington v. In- habitants of Springfield (2 Pick. 394), 21. Inhabitants of Manchester v. In- habitants of Boston (16 Mass. 230), 21. Inspectors of Election, In re (25 N. Y. Sup. 1063), 63a. Irwin's Case (43d Cong.), 637. Isaacs V. McNeil (44 Fed. Rep. 33), 29a Ivey, Ex parte (26 Fla. 537), 387. Jackson V. Hampden (30 Me. 87), 652. Jackson v. Walker (5 Hill, N. Y., 27), 213, 214 Jackson v. Wayne (CL & H. 47), 247, 248. Jackson v. White (20 Johns. 313), 21. Jeffries v. Ankeney (11 Ohio, 872), 289. Jenkins v. Baxter (160 Pa. St 199), 671. Jenkins v. Waldron (11 Johns. 114), 289. Jennings v. Reynolds (4 Kan. 110), 319. Johnson v. Board of Canvassers (101 Mich. 187; 59 N. W. Rep. 413), 730. Johnson v. People (94 III 505), 97. Johnson v. State (138 Ind. 16), 211. Johnston v. Jones (23 N. J. Eq. 216), 671. Johnston v. Russell (37 CaL 670), 219. Jones V. Black (43 Ala. 540), 387. Jones V. Board, etc. (56 Miss. 766, 768), 125. Jones V. Glidewell (53 Ark. 161), 564. Jones V. Gridley (30 Kan. 584), 181. Jones V. Shelley (2 Ells. 681), 448. Jones V. State (1 Kan. 273), 227, 228. Jordan v. Bailey (37 Minn. 174), 153. Judah V. Am. Ins. Co. (4 Ind. 333), 652w Judkins v. Hill (50 N. H. 140), 574, 576. Junker v. Commonwealth (20 Pa. St 484, 493), 161, 22a K. Kane v. People (4 Neb. 509), 267, 435. Keenan v. Cook (12 R I. 153), 264. Keith V. Clark (97 U. S. 454), 13. Keller v. Chapman (34 CaL 635), 238, 456. Kelsey v. Wright (1 Root, Conn., 83), 670. Kemp V. Owens (76 Md. 235), 88. Kenfield v. Irwin (53 CaL 164), 181, TABLE OF CASES CITED. xU Beferences are to sectiona Kennedy, Ex parte (23 Tex. App. 77), 147. Kentucky Election (2 Bart. 327), 319. Kerr v. Trego (47 Pa. St. 292), 306, 317, 621, 627, 628. Key V. Vattier (1 Ohio, 132), 586. Keyser v. McKissan (2 Rawle, 139), 251. Kilbourn v. Thompson (103 U. S. 168), 640. Kilham v. Ward (2 Mass. 236), 21, 289. Kinierer v. State (129 Ind. 589), 311. King V. Clark (2 East, 70), 405. King V. Hawkins (10 East, 211), 327. King V. Mayor (2 T. R 260), 402. King V. Plympton (2 Ld. Raym. 1377), 333. King V. Rees (Garth. 393), 405. King V. Winchester (7 Ad. & E. 215), 402. Kingery v. Berry (94 111. 515), 478. Kinneen v. Wells (144 Mass. 497), 36, 134 Kirk V. Rhoads (46 Cal. 398), 433, 538, 720. Kisler v. Cameron (39 Ind. 488), 290, 421, 422. Kline v. Verree (1 Bart 381), 372, 471. Kneass' Case (2 Para 553, 599; Bright. Elec. Cas. 260, 337, 366), 391,435,437,439,441,454. Knote V. United States (95 U. S. 149), 125. Knowles v. Yeates (31 Cal. 82), 161. Knowlton v. Ackley (8 Cush. 93), 655. Knox V. Blair (1 Bart. 521), 450, 571, 683. Knox County v. Davis (63 111. 405), 576. Koehler v. Hill (60 Iowa, 543), 34. Koontz V. Coffroth (2 Bart. 25), 514. Kortz V. Green County Canvassers (12 Abb. 84). 261. Kraleman v. Sippel (57 Ma App. 598), 456. Kreitz v. Behrensmeyer (125 111. 141), 78, 105, 226, 433, 435c, 437, 460, 53L L. Lafayette, City of, v. State (69 Ind. 218), 176. Lane v. Brainard (30 Conn. 566), 653. Langhammer v. Munter (80 Md. 518), 88. 470. Langston v. Venable (Row. 435), 582a. Langtry, In re (31 Fed. Rep. 879), 71. Lankford v. Gebhart (130 Mo. 631), 98, 172, 723. Lanman, Case of (CI. & H. 871), 359. Lanning v. Carpenter (20 N. Y. 447), 48. Lansing v. Lansing (8 Johns. 454), 219. Lamed v. Wheeler (140 Mass. 390), 290. Las Portas v. De La Motta (10 Rich, Eq. Rep. 38), 86. Lawrence v. Knight (1 Brewst. 67; S. C, Bright. Elec. Cas. 617), 387. Lawrence v. Schmaulhausen (123 IlL 321). 263. Lawrence v. Sypher (43d Cong.), 44. Lay v. Parsons (104 Cal. 661; 38 Pac. Rep. 447), 720. Led better v. Hall (62 Ma 422), 226, 548. Lee V. Rainey (Smith, 589), 529, 531. xlii TABLE OF CASES CITED. References are to sections. Lehlbach v. Haynes (54 N, J. L. 77), 222, 581. Lehman v. McBride (15 Ohio St. 573), 156. Leigh V. State (69 Ala. 261), 261, 264. Lelar's Case (2 Pars. 548), 437. Le Moyne v. Farwell (Smith, 406), 104, 524. Leonard v. Commonwealth (112 Pa. St 607), 220. Letcher v. Moore (CL & H. 715, 749, 843), 117, 239, 272, 469. Lewis v. Commissioners (16 Kan. 102), 269. License Cases (5 How., U. S., 504, 585), 70. Lincoln v. Hapgood (11 Mass. 350, 359), 97, 99, 289, 290. Lindstrom v. Board of Canvassers (94 Mich. 467; 54 N. W. Rep. 280), 538, 706, 721. Littell V. Bobbins (1 Bart. 138), 274. Little V. State (75 Tex. 616), 495. Littlefield v. Green (1 Chicago Legal News, 230; S. C, Bright Elec. Cas. 493), 511, 58a Lloyd V. Sullivan (9 Mont 577), 515, 574, 583. Locke's Appeal (73 Pa. St 491; 13 Am. Rep. 716), 198. Locust Ward Election (4 Pa, Law J. 293, 349), 164, 492. Lombard v. Oliver (7 Allen, 155), 290, 29a Londoner v. People (15 Cola 557), 571. Long Island R. R Ca, In re (19 Wend. 37), 647, 668. Loomis V. Jackson (6 W. Va. 613), 87& Lord V. Dunster (79 CaL 477), 435&, 456. Loval V. Meyers (1 Bailey, 486), 218. Lowe V. Wheeler (2 Ells. 61), 141, 274, 466a, 511, 5395, Lower Oxford Contested Election (3 Pa. Co. Ct. 323), 98. Lowry v. White (Mob. 623), 78, 330. Loyall v. Newton (CL & H. 520), 465, 491. Lucas V. Ringsrud (3 S. D. 355; 53 N. W. Rep. 426), 697, 709. Luce V. Maybe w (13 Gray, 83), 510. Lunsford v. Ciilton (Ky., 23 S. W. Rep. 946), 426. Luther v. Borden (17 U. a 15), 4, 18. Luzerne County Election Case (3 Pa.L J. 155), 537. Lyman v. Martin (2 Utah, 136), 63. Lynch v. Chalmers (2 Ells. 838), 457, 535, 538. Lynch v. Chase (55 Kan. 367; S. C, 40 Pac. Rep. 666). 355. Lyon V. Smith (CL & H. 101), 181. M. Mackey v. O'Connor (2 Ells. 561), 456a Mackin v. United States (117 U. S. 348), 121, 332. Madden, In re (148 N. Y. 136), 702. Maddendorf 's Case (4 Pa. Dist Rep. 78), 107. Madison, City of, v. Wade (88 Ga. 699), 126, 210. Maize v. State (4 Ind. 342), 198. Major V. Barker (Ky., 35 a W. Rep. 543), 326, 488. Maiden's Case (Cush. Elea Cas. 377), 67. Mallett V. Plumb (60 Conn. 852), 473. Mallory v. Merrill (CL & H. 828), 201, 236. Mann v. Cassiday (1 Brewst. 82), 442, 454, 523. Manzanares v. Luna O^ob. 61), 448. TABLE OF OASES CITED. xLiii Beferencea are to sectiona Marbury v. Madison (1 Cr. 137), 307. March, Lord, v. Pigott (5 Burr. 2803), 218. Marre v. Garrison (13 Abb. New Cases, 210), 660. Marshall v. Kerns (2 Swan, 66, 68), 158, 264 Marshall County v. Cook (38 111. 444), 181. Martin v. Commonwealth (1 Masa 347, 397), 21. Martin v. Miles (40 Neb. 135), 478. Mason v. Gates (2 Ella 8), 452. Massey v. Wise (Mob. 365), 339a. Matteson Case (38th Cong.), 362. Matthews v. Board (34 Kan. 606), 181. Mauston v. Mcintosh (58 Minn. 525), 704. Maxwell v. Cannon (Smith, 182), 625. Mayfleld v. Moore (Bright. Elec Caa 605). 367. Maynard v. Board of District Can- vassers (84 Mich. 228), 212. Maynard v. Stillson (Mich., 66 N. W. Rep. 388), 581. Mayo V. Freeland (10 Ma 629), 264. Mayor v. Rainwater (47 Misa 547), 416. McCafferty v. Guyer (Bright. Elec. Caa 44; s. a, 59 Pa. St 109), 52, 61. McCall V. Bryan (6 Conn. 428), 670. McCoUough V. State of Maryland (4 Wheat. 404), 22, 32. McCoppin, In re (5 Sawy. 630), 79. McCoy V. Boyle (51 N. J. L 53; 8. a, 16 Atl. Rep. 15), 435a. McCullough, In re (12 PhiL 570), 482. McCullough V. Helwig (7 AtL Rep. 454), 600. McDaniel's Case (8 Pa. Law J. 310; 8. c. Bright. Elec. Caa 238), 96, 97, 100, 494, 495. McDaniel v. Manufacturing Co. (22 Vt. 274), 652, 653. McDougall V, Gardener (L. R 1 Ch. Div. 14), 652. McDowell V. Rjitherford, etc. Co. (96 N. C. 514; s. a, 17 Am. & Eng. Corp. Caa 412), 210, 527. McDuffie V. Davidson (Mob. 577), 478, 515. McFarland v. Culpepper (CL & H. 221), 247. McGee v. Supervisors (10 CaL 376), 419. McGregor v. Balch (14 Vt 428), 251. McGuire v. State (7 Humph. 54), 587, 615. McHenry v. Jewett (26 Me. 453), 645, 646. Mcllvaine v. Cox's Lessee (4 Cranch, 209), 21. Mcllwee, Ex parte (3 Am. Law Times, 251; s. C, Bright Elec. Caa 65), 42. McKay v. Campbell (3 Abb., U. S.. 120), 42. McKenzie, Case of (1 Bart 460), 169. McKenzie v. Braxton (Smith, 19), 498, 511, 528, 535. McKenzie v. Kitchen (1 Bart 468), 169. McKinney v. O'Connor (26 Tex. 5), 228. McKinney v. Peers (91 Va. 684), 261, 262, 267. McKinnon v. People (110 III 805), 543. McKittrick v. Pardee (S. D., 65 N. W. Rep. 23), 720. McKune v. Weller (11 Cal. 49), 185. McLean v. Brodhead (MoU 888), 184. xHt TABLE OF CASES CITED. References are to sections. McLean v. Hobbs (74 Md. 116), 88. McMahon v. Mayor (66 Ga. 217; S. C, 42 Am. Rep. 65), 49, 127. McMaster V. Herald (56 Kan. 231; a a, 42 Pac. Rep. 697), 355. Meacham v. Dow (32 Vt 721), 221. Mead v. Carroll (6 D. C. 338), 261. Mechanics' Nat. Bank v. Manufact- uring Co. (32 N. J. Eq. 236), 671. Meeker v. Munthrop (17 Fed- Rep. 49), 643. Melvin's Case (68 Pa. St. 333), 161. Mercer, John F., Case of (CI. & H. 44), 362. Meredith v. Ladd (2 N. R 517), 333. Merrick v. Brainard (38 Barb. 574), 658. Merrick v. Van Santvoord (34 N. Y. 208), 658. Merrill v. Whitmire (110 N. C. 367), 88. Merritt v. Hinton (55 Ark. 12), 479. Meservey, Case of (1 Bart 148), 244 Middendorfs Case (4 Pa. Dist Rep. 78), 141. Middle brook v. Bank (3 Keyes, N. Y., 135), 649. Miller v. Elliott (Row. 504), 134 MiUer v. Emer (27 Me. 509), 658. Miller v. English (1 Zab. 317), 158. Miller v. Lowry (5 Phil. 202), 387. Miller V. Pennoyer(23 Oreg. 364; 31 Pa& Rep. 830X 706. Miller v. Rucker (1 Bush, Ky., 135), 289. Miller v. Thompson (1 Bart 118), 98. Milliken v. Fuller (1 Bart 176), 248. Mills V. Green (67 Fed. Rep. 818), 128. Minear v. Tucker (39 W. Va. 627), 242. Minor v. Happersett (53 Mo. 58), 6a Minor v. Happersett (21 WalL 178), 3, 36, 646. Misch V. RusseU (136 UL 32), 340a. Mitchell, In re (81 Hun, 401), 178. MoflFett V. Hill (131 111. 239), 8a Mohawk, etc Co., In re (19 Wend. 135), 649. Monroe v. Collins (17 Ohio St 665), 44, 132. Monroe v. Jackson (1 Bart 98), 104. Montgomery v. Odell (67 Hun, 169), 230, 532, 705. Montgomery v. Oldham (143 Ind. 137; S. C, 42 N. K Rep. 474), 719. Moore v. Hoisington (31 III 243), 386, 387. Moore v. Jones (76 N. C. 182), 262. Moran v. Rennard (3 Brewst 601), 289. Morgan v. Board (24 Kan. 71), 181. Morgan v. Dudley (18 B. Mon. 693), 74, 289. Morgan v. Gloucester (44 N. J. Law. 137), 181. Morgan v. Quackenbush (22 Barb. 72), 263, 265. Morris v. Powell (125 Ind. 281), 52, 126. Morris v. State (7 Ind. 607), 602, 619. Morris v. Van Lanningham (11 Kan. 269), 22a Morrison v. Springer (15 Iowa, 304), 156, 157. Morton v. Daily (1 Bart 402), 93, 309, 310. Mott V. Connolly (50 Barb. 516). 367. Mott V. Railroad (30 Pa. St 9), 628. Motter V. Primrose (23 Md. 482), 655. Moulton V. Reid (54 Ala. 820), 317, 386. Moyer v. Van de Venter (12 Wasli. 377), 231, 717. Mudge V. Jones (59 Mich. 165), 6a MulhoUand v. Bryant (39 Ind- 363), 538. TABLE OF CASES CITED. xlv Beferences are to sections. Munf ord, Case of (CL & H. 316), 340. Murdock v. Weimer (55 111. App. 537), 108. Murphy, Ex parte (7 Cow. 1-53), 396, 522. Murphy v. Battle (155 111. 182; 40 N. E. Rep. 470), 478, 706. Murphy v. Ramsey (114 U. S. 15), 45. Myer v. Chalmers (60 Miss. 772), 415. Myers v. Moffatt (2 Bart. 564), 113. K Napier v. Mayhew (35 Ind. 276), 539. Nash V. Craig (Mo., 35 S. W. Rep. 1001), 441. Nathan v. Tompkins (82 Ala. 437), 670. Neal V. Shinn (49 Ark. 227), 216. Neff V. Shanks (43d Cong.), 539. Nelzger v. Railroad Co. (36 Iowa, 642), 135. Newcum v. Kirtley (13 B. Mon. 515), 162, 558. New England Mutual Ins. Co. v. Phillips (141 Mass. 535; S. C, 13 Am. & Eng. Corp^ Cas. 104), 671. New Jersey Case (1 Bart. 19), 315, 467, 483, 484. Newland v. Graham (1 Bart. 5), 230, 484, 486. Newsom v. Earnheart (86 N. C. 391), 139. Newton v. Newell (26 Minn. 529), 392, 478, 543. Niblack v. WaUs (Smith, 101), 202, 203, 463, 527a. Nicholson V. Mudgett (23 Vt. 546), 220. Norris, Ex parte (8 a C. 408), 432. Norris v. Handley (Smith, 68), 266, 463, 519, 566. Northcote v. Pulsford (L. E. 10 C. P. 476, 483), 706. North Shore Ferry Co., In re (63 Barb. 556), 649. North Whitehall v. South White- hall (3 S. & R 116), 277. Norton v. Shelby County (118 U. S. 425), 255. Norwood's Case (42d Cong.), 151. o. O'Conner t. Mayor (1 Seld. 285), 368. O'Connor v. State (9 Fla. 215), 84. O'Farrell v. Colby (2 Minn. 180), 364, 369, 385. Oglesby v. Sigman (58 Miss. 503), 539. O'Gorham v. Richter (31 Minn. 35), 260. O'Hair v. Wilson (134 III. 351), 99, 228. O'Harra v. Powell (80 N. C. 103), 377. Ohio, etc. R. R V. McPherson (35 Mo. 13), 658, 659. Oldknow V. Wainwright (I Black- stone, 229), 167. Olive V. O'Reily (Minor, Ala., 410), 6a Opinions of Attorneys-General (vol. 1, 631), 364. Opinions of Attorneys-General (vol. 2, 525), 364 Opinions of Attorneys-General (voL 3, 673), 364. Opinions of Attorneys-General (vol. 4, 523), 364 Opinions of Attorneys-General (vol. 7, 186), 364 Opinions of Attorneys-General (voL 10, 356), 364 Opinions of Attorneys-General (vol. 11, 179), 364 Opinions of Attorneys-General (vol. 12, 32), 364 Opinions of Attorneys-General (voL 12, 449), 364 xlvi TABLE OF CASES CITSD. Beferenoes are to sections. Opinions of Attorneys-General (voL 14. 538). 364 Opinions of Judges (1 Cush. Elea Cas. 436), 101. Opinions of Judges (1 Cush. Elec. Cas. 120), 67. Opinions of Judges (32 Me. 547, 597), 329. Opinions of Judges (5 Met., Mass., 587, 591), 101, 111. Opinions of Judges (1 Met, Mass., 580), 88. Opinions of Judges (1 Cush. Elec. Cas. 120), 67. Opinions of Judges (18 Pick., Mass., 575), 108. Opinions of Judges (30 Conn. 591), 156. Opinions of Justices (117 Mass. 599), 271. Opinions of Justices (64 Me. 596), 529. Opinions of Justices (68 Me. 587), 243. Opinions of Justices (70 Me. 565, 570), 526, 529, 713. Opinions of Justices (44 N. H. 633), 156. Opinions of Justices (53 N. H. 640), 280. Opinions of Justices (58 N. H. 621), 261. Ormsby v. Vermont, etc. Mining Co. (56 N. Y. 623), 658. Oters V. Gallegos (1 Bart. 177), 69, 429. Overseers v. Sears (23 Pick. 122), 670. P. Page V. Allen (58 Pa. St. 338, 347), 61. Page V. Hardin (8 B. Mon. 648), 347, 353, 354, 36a Page V. Kuykendall (161 IlL 819), 542. Page V. Letcher (11 Utah, 119; s. a, 39 Pac. Rep. 499), 261, 411. Palmer v. Downer (2 Mass. 179, n.), 21. Palmer v. Foley (36 Sup. Ct. N. Y. 14), 380. Parker v. Commonwealth (6 Pa, St. 509), 197. Parker v. Orr (158 111. 609), 720. Parsons v. Bedford (3 Pet 433, 446), 72. Parvin v. Wimberg (130 Ind. 561), 172, 225, 716, 720. Passenger Cases (7 How. 518, 556), 70. Patterson v. Barlow (60 Pa, St 54), 61, 129, 130. Patterson v. Belford (1 Ells. 52). 142, 167, 180. Patton V. Coates (41 Ark. Ill), 484 Patton V. Vaughn (39 Ark. 211), 355. Pearce v. State (1 Sneed, 63), 606. Peard v. State (34 Neb. 372), 225, 233. Pearson v. Board (91 Va. 332), 48, 714, 718. Peavey v. Robbins (3 Jones, N. C, 339), 289. Peck V. Weddell (17 Ohio St 271). 386, 387, 389. Peck V. Young (26 Wend. 613, 622), 84 Pedigo V. Grimes (118 Ind. 148), 98, 101, 391, 492. Pender v. Lushington (K R 6 Ch, Div. 70), 649. Penhallow v. Doane's Adm'rs (3 DalL 93), 13, 16. Pennington v. Hare (60 Minn. 146), 231, 537, 720. Pennsylvania District Election Cases (Bright Elec Cas. 617), 277. Pennsylvania District Election Cases (2 Pars. 526), 163. TABLE OF CASES CITED. xlvii Beferences are to sections. People V. Albany County Canvass- ers (46 Hun, 390), 267. People V. Albertson (55 N. Y. 50), 366. People V. Allen (6 "Wend. 486), 282. People V. Ammons (5 Gilm., 111., 107), 251. People V. Avery (102 Mich. 572), 178, 706. 712. People V. Barber (48 Hun, 198), 606. People V. Bates (11 Mich. 362), 172, 228, 233. People V. Batchelor (22 N. Y. 134), 652, 653, 654. People V. Bell (54 Hun, 567), 124, 287. People V. Bidleman (69 Hun, 596), 226. People V. Board of Aldermen (65 Hun, 300), 379. People V. Board of Canvassers (18 N. Y. Sup. 302), 539. People V. Board of County Can- vassers (129 N. Y. 395), 721. People V. Board of Governors of Albany Hospital (61 Barb. 397), 605. People V. Board of State Canvass- ers (129 N. Y. 360), 261. People V. Board of Supervisors (135 N. Y. 522), 405, 535. People V. Boas (29 Hun, 377), 600. People V. Brenham (3Cal. 477), 176. People V. Brown (11 111. 478), 210. People V. Bull (46 N. Y. 57), 366. People V. Burden (45 Cal. 241), 474, 476. People V. Burns (75 CaL 627), 287. People V. Cady (143 N. Y. 100), 104. People V. Canaday (73 N. C. 198), 52. People V. Canvassers (11 Mich. Ill), 181. People V. Caruthers School Dis- trict (102 CaL 184), 179. People V. Cicott (16 Mich. 283), 392, 490, 492, 495, 529. D People V. Cissy (91 N. 7. 616, 634), 181, 212. People V. Clute (50 N. Y. 45), 829. People V. Commissioners (57 How. Prac. 445), 288. People V. Commissioners (7 Colo. 190), 484. People V. Common Council (28 Mich. 228), 367. People V. Common Council (29 Mich. 108), 366. People V. Cook (14 Barb. 259; a C, 8 N. Y. 67), 163, 222, 251, 316, 529, 578. 579. People V. Cornell (16 Cal. 187), 120. People V. Corporationof New York (3 Johns. Cas. 79), 402, 404. People V. Cowles (13 N. Y. 350), 176, 182. People V. Curamings (72 N. Y. 433), 655. People V. Detroit (18 Mich. 388), 402. People V. Deverman (83 Hun, 181), 228. People V. District Court (18 Colo. 26; 31 Pac. Rep. 339), 698. People V. Draper (15 N. Y. 532), 366. People V. Dutcher (56 111. 144), 196. People V. English (29 N. E. Rep. 678), 63a. People V. Ferguson (8 Cow. 102), 529. People V. Forquer (Breese, 68), 103, 402. People V. Galesburg (48 IlL 486), 386. People V. Garner (47 111. 246), 208. People V. Gordon (5 CaL 235), 287. People V. Green (58 N. Y. 296), 335. People V. Green County Canvass- ers (12 Abb. N. C, N. Y, 95), 415. People v. Hanna (98 Mich. 517), 52a People V. Harris (29 Cal. 678), 587, 615. People V. Harshaw (60 Mich. 200), 501. zlviii TABLE OF CASES CITED. Beferences are to sections. People V. Hartwell (12 Mich. 508), 176, 184. People V. Head (35 la 835), 363. People V. Hilliard (39 IlL 413), 418, 419. People V. Hoffman (116 IlL 334, 587; 3 West. Rep. 523X 127, 138, 129. People V. Holden (38 CaL 134, 139; a c, Bright Elea Cas. 484), 97, 380, 395, 454, 475, 504, 541. People V. Holihan (39 Mich. 116), 47,95. People V. Hurlbut (24 Mich. 44), 366. People V. Jones (30 CaL 50), 316, 380, 39& People V. Kennedy (37 Mich. 67), 629. People V. Kennedy (96 N. Y. 294), 212. People V. Kilduff (15 IlL 493X 263, 535. People V. Kings (105 N. Y. 180), 368. People V. Koppelkam (16 Mich. 343), 136. People V. Lathrop (34 Mich. 335), 366. People V. Leonard (73 CaL 230), 348. People V. Livingstone (80 N. Y. 66), 473. People V. Loomis (8 Wend. 396), 533. People V. Love (63 Barb. 535), 545. People V. Mahaney (12 CaL 409), 147. People V. Mahaney (13 Mich. 481). 380. People V. Martin (1 Seld., N. Y., 22), 160. People V. Martin (13 CaL 409), 184. People V. Matteson (17 IlL 167), 540. People V. Maynard (15 Mich. 463), 4a People V. McKinney (52 N. Y. 874), 366. People V. McManus (84 Barb. 620), 540. People V. McNally (9 Abb. N. Cas. 648), 78. People V. McNeal (63 Mich. 294), 539. People V. Miller (16 Mich. 56), 317. People V. Murray (15 CaL 331), 161. People V. Nelson (133 IlL 565), 313. People V. Nordheim(99 IIL 553), 38a People V. Ohio Grove (51 IlL 191X 193. People V. Palmer (53 N. Y. 83), 336. People V. Pangburn (14 Misc. Rep. 195), 54a People V. Pease (37 N. Y. 45; s. a, 84 Am. Dec. 342), 135, 395, 386, 367, 444, 484, 488, 493, 494, 509, 539, 548. People V. Perly (80 N. Y. 634), 313. People V. Phillips (1 Den. 388), 631. People V. Police Commissioners (10 Miss. 300; 31 N. Y. Sup. 467), 698. People V. Porter (6 CaL 36), 184, 853. People V. Pratt (15 Mich. 184), 455. People V. President (144 N. Y. 616), 700. People V, Railroad Co. (55 Barb. 844), 652, 654, 661. People V. Reardon (49 Hun, 425), 269. People V. Regents (4 Mich. 98), 410. People V. Riley (15 CaL 48), 90. People V. Rives (27 IlL 341), 418. People V. Roseborough (14 CaL 180), 851. People V. Roseborough (39 CaL 415), 184. People V. Runkel (9 Johns. 147), 670. People V. Sausalito (106 CaL 500), 730. People V. Saxton (93 N. Y. 309X 544, 545. People V. Schermerhom (19 Barb. 540), 338. TABLE OF CASES CITED. xlix References are to sections. People V. Schiellein (95 N. Y. 124), 415. People V. Seaman (5 Den. 409), 529, 542. People V. Shaw (133 N. Y. 498), 700. People V. Sloan (14 111. 476), 195. People V. Smyth (28 Cal. 21), 867. People V. Staton (73 N. C. 546), 251. People V. Stevens (5 Hill, 616), 417. People V. Supervisors of Greene County (12 Barb. 217), 269, 402. People V. Sweetman (3 Park. C. R. 858), 75. People V. Thatcher (7 Lans., N. Y., 274), 521, 578. People V. Thompson (67 Cal. 627), 181. People V. Thornton (25 Hun, N. Y., 458, 555), 33a People V. Tieman (8 Abb. 359), 349. People V. Tieman (30 Barb. 193), 367. People V. Tisdale (1 Doug., Mich., 59), 529. People V. Twaddell (18 Hun, 427), 660, 661, 669. People V. Vail (20 Wend. 12), 316, 374, 503, 522. People V. Van Cleve (1 Mich. 862), 264 People v. Van Slyck (4 Cow. 297), 262, 512. People V. Walsh (9 AbU N. Caa 465), 76, 77. People V. Wappinger Falls (83 Hun, 130), 177. People V. Warfield (20 IlL 163), 208. People V. Wattles (13 Mich. 446), 138. People V. Wayne County Canvass- ers (12 Abb. New Cas. 7; 8. C, 64 How. Prac. 334), 261, 264. People V. Webb (5 N. Y. Supp. 355), 640. People V. Welles (11 Cal. 49), 184 People V. White (24 Wend. 539), 255. People V. Wiant (48 IlL 263), 208, 209. People V. Wilson (62 N. Y. 186), 140.' People V. Witherell (14 Mich. 48), 181. People V. Wood (148 N. Y. 142), 222, 535, 538, 721. Perken, Ex parte (29 Fed. Rep. 900), 257. Perkins, Case of (1 Bart. 142), 189, 190. Perkins v. Carraway (59 Miss. 222), 47, 95. Perkins v. Stevens (34 Pick. 277), 125. Perry v. Reynolds (53 Conn. 527; a a, 13 Am. & Eng. Corp. Cas. 114), 292. Perry v. Ryan (68 111. 172), 141, 466a. Perry v. Whittaker (71 N. C. 475), 527. Petit v. Rousseau (16 La. Ann. 239), 367. Petition of Hinkle (31 Kan. 712), 255. Petty V. Tooker (21 N. Y. 267), 651. Peyton v. Brent (3 Cr. C. C. 434), 316. Phelps V. Schroeder (26 Ohio St. 549), 262. Phelps and Cavanaugh, Case of (1 Bart 248), 192, 245. Phelps of Vermont, Case of (1 Bart. 613), 361. Phillips V. Wickham (1 Paige, 590X 175, 660. Piatt V. People (29 HI. 54), 164, 228. Pierce v. Commonwealth (104 Pa. St. 150), 665. Pierce v. Getchell (76 Me. 216), 399. Pigott's Case (1 Bart. 463), 98. Pike V. Magoun (44 Mo. 491), 29a Pink V. Barr (14 Phila. 154), 386. Pitts V. Temple (2 Mass. 538), 65a TABLE OF CASES CITED. References are to sections. Piatt V. Good (Smith, 650), 135, 216, 497. Plummer v. Yost (144 IlL 68), 63. Plurality Election (15 R 1. 617; s. C, 8 AtL Rep. 881), 207. Polling Lists, In re (13 R I. 729), 127, 130. Pool V. Skinner (Mob. 65), 190. Posey V. Parrett (Row. 187), 101, 44a Potter V. Bobbins (CL & H. 877), 149, 359. Powell V. Holman (50 Ark. 85), 480. Powers V. Reed (19 Ohio St 189), 504. Pradat v. Ramsey (47 Miss. 24), 481. Pratt V. Swanton (15 Vt 147), 181. Preston v. Culbertson (58 CaL 198), 76, 77, 100, 158, 470. Price V. Baker (41 Ind. 572), 329. Price V. Lush (10 Mont 61), 705. Pritchett v. People (1 Gilm., IlL, 525, 529), 251. Putnam v. Johnson (10 Mass. 488), lOL Q. Queen v. Derby (7 Ad. & R 419), 402. Quinn v. Markoe (37 Minn. 439), 251, 535. Quinn v. State (35 Ind. 486), 51, 608. E. Rail V. Potts (8 Humph. 225), 289. Railroad Ca v. Barss (39 Ind. 598), 549. Railroad Ca v. Davidson County (1 Sneed, 692), 208. Ramsey v. Calaway (15 La. Ann. 464), 267. Randolph v. Good (3 W. Va. 551), 52. Rathburn v. Hamilton (53 Kan. 470; 37 Pac. Rep. 20), 707, 70a Reed v. Bank (6 Paige, 337), 660. Reed v. Corden (01. & H. 853), 211. Reeder v. Whitfield (1 Bart 185^ 189), 371. Reid V. Julian (2 Bart. 822), 250, 491, 516, 573. Regina v. Cooks (3 E. & B. 249), 668. Regina v. Cooks (7 Q. B. 406), 327. Regina v. Mayor (L. R 2 Q. B. 629), 668. Reilly v. Oglebay (25 W. Va. 36), 654, 669. Renner v. Bennett (21 OhioSt451X 94 Rex V. Atkins (4 Mod. 12), 670. Rex V. Bissell (Heywood, 360), 327. Rex V. Burden (4 T. R 778), 352. Rex V. Coe (Heywood, 361), 327. Rex V. Monday (Cowp. 537), 327. Rex V. Parry (14 East, 549), 327. Rex V. Thornton (4 East 432), 670. Rex V. Vaughn (4 Burr. 2494), 33a Reynolds v. McKinney (4 E^an. 94), 219. Rice V. Board of Canvassers (50 Kan. 149), 268. Rice V. Foster (4 Harr., DeL, 479, 485), 197, 375. Rich V. Flanders (39 N. H. 385), 4 Richards, John (CL & H. 95, 97), 201, 205. Richardson v. Jamison (55 Kan. 16; 39 Pac. Rep. 1050), 720. Richardson v. McReynolds(114Mo. 641), 208. Ridley v. Sherbrook (3 Coldw. 569), 46. Ried v. Kneass (Bright Elec Cas. 260, 337, 366), 491, 492, 502. Rigsbee v. Durham (98 N. C. 81), 501. Rigsbee v, Durham (99 N. C. 841), 459. Risohn v. Farr (24 Ark. 161), 46, 52, 69. TABLE OF CASES CITED. u Beferences are to sections. Rodrigues, Ex parte (39 Tex. 705), 597. Roemer v. Board of Canvassers (90 Mich. 27), 267, 412. Rogers v. Slonaker (32 Kan. 191), 852. Roller V. Truesdale (26 Ohio St. 586), 549a. Root V. Adams (CL & H. 271), 237. Rump V. Commonwealth (6 Pa. St. 475), 74. Rosenthal v. State Board of Can- vassers (50 Kan. 129), 268. Russell V. McDowell (83 Cal. 70), 226, 495. Russell V. State (11 Kan. 308), 507, 576, 583. Rutledge v. Crawford (91 Cal. 526), 54a S. San Buena Ventura Mfg. Co. v. Vassault (50 CaL 334), 652, 653. Sanders v. Gitchell (76 Me. 158), 101, 103, 299. San Louis Obispo Co. v. White (91 CaL 432), 232. Sanner v. Patton (155 IlL 553; 40 N. E. Rep. 290), 700. Santa Cruz Water Co. v. Kron (74 Cal. 222), 147. Sargent v. Webster (18 Met, Mass., 497), 653. Saunders v. Haynes (18 CaL 145), 329. Savage v. BaU (17 N. J. Eq. 142), 648. Sawin v. Pease (Wyo., 42 Pac Rep. 750), 532. Sawyer v. Hayden (1 Nev. 75), 147, 194, 252. Sawyer v. State (45 Ohio St. 343), 153. Schaeffer v. Gilbert (78 Md. 66), 98, 101. Schenk v. Peay (1 DilL 267), 865^ School Directors, In re (12 PhiL 605), 523. School District v. Allerton (12 Mass. 105), 670. Scott, Dred, v. Sanford (19 How. 373), 17, 85a. Scoville V. Calhoun (76 Ga. 268), 402. Scranton Borough Election (Bright Elec. Cas. 455), 276. Secord v. Foutch (44 Mich. 89), 181. Seeley v. Killoran (53 Minn. 290), 427. Segar, Case of (1 Bart 414, 426, 577), 169. Segars, Ex parte (32 Tex. Cr. Rep. 533), 158. Sego V. Stoddard (136 Ind. 299; 36 N. E. Rep. 204), 226, 537, 720. Sego V. Stoddard (136 Ind. 700), 720. Seibold, Ex parte (100 U. S. 871), 42, 143, 144, 191, 256. Selleck v. Common Council (40 Conn. 359), 380. Senate Report No. 58 (42d Cong.), 331. Sessinghaus v. Frost (3 Ells. 381), 136, 527a, 549a. Seymour v. City of Tacoma (6 Wash. 427), 178. Shaw V. Norfolk R R. Ca (5 Gray, 152), 658. Sheafe v. Tillman (2 Bart 907), 57, 311. Shell V. Cousins (77 Va. 328), 340. Shellabarger v. Commissioners of Jackson Co. (50 Kan. 138), 414. Sheppard v. Gibbons (2 Brewst 128), 495. Sheridan v. Pinchback (Smith, 196), 447. Sherlty v. Howard (3 Ch. Leg, News, 230), 219. Shiel V. Thayer (1 Bart 349), 155. lii TABLE OF CASES CITED. References are to sections. Shields, James, Case of (1 Bart. 606), 343. Shields v. Jacob (88 Mich. 164; 56 N. W. Rep. 105), 698. Shields v. McGregor (91 Mo. 534), 539, 549a. Silvey v. Lindsay (107 N. Y. 55), 88, 104. Simons v. People (119 IlL 617), ISa Simpson v. Osborn (53 Kan. 328; 34 Pac. Rep. 747), 695, 696, 705. Sinks V. Reese (19 Ohio St. 806), 89, 115. Skerret's Case (3 Para 509), 437. Slaymaker v. Phillips (Wyo., 40 Pac. Rep. 971; 43 Pac. Rep. 1049), 126, 336, 699, 716. Slee V. Bloom (5 Johns. Ch. 366), 670. Sleeper v. Rice (1 Bart 472, 699), 271. Sloan V. Rawles (43d Cong.), 284 Smalls V. Elliott (Mob. 663), 580. Smith, Ex parte (8 S. C. 495), 432. Smith, Hugh N., Case of (1 Bart. 107), 244. Smith, In re (3 N. Y. Sup. 107), 130. Smith V. Brown (2 Bart. 395), 328. Smith V. Board of County Com- missioners (45 Fed. Rep. 725), 135. Smith V. Crutcher (93 Ky. 586), 176. Smith V. Harris (18 Cola 274; 32 Pac Rep. 616), 708. Smith V. Jackson (Row. 9), 115, 158, 249, 266, 283, 466a, 493. Smith V. Mining Co. (64 Md. 85), 669. Smith V. New York (37 N. Y. 518), 368, 380. Smith V. Shelley (2 Ells. 18), 284, 511. Smith V. Waterbury (54 Cona 174), 868. Smyth V. McMaster (2 P. A. Browne, 182), 219. Snowball v. People (147 IlL 260), 153. Snyder, Ex parte (64 Mo. 58), 255. Sone V. Williams (130 Mo. 530), 437, 472. Soper V. Board of County Commis- sioners (46 Minn. 274), 163, 222, 429, 712. South Bay, etc. Co. v. Gray (30 Me. 547), 670. South School District v. Blakesley (13 Conn. 227), 654 Spaulding v. Mead (CI. & H. 157), 201. Spaulding v. Preston (21 Vt 9), 220. Spencer's Case (Smith, 437), 149. Spencer, In re (5 Sawy. 195), 83. Spencer v. Board (1 MacArth. 169), 3, 4, 46. 63, 64 Spencer v. Morey (Smith, 437), 227, 260, 504 5ia Spidle V. McCracken (45 Kan. 356), 223, 478. Spragins v. Houghton (2 Scam., IlL, 377; s. a, Bright Elec. Cas.), 3, 66, 295. Sprague v. Norway (31 CaL 173), 228. Spratt V. Spratt (4 Pet 393). 76. Spurgin v. Thompson (37 Neb. 39), 535, 720, 723. Stallcup V. Tacoma (13 Wash. 141), 185. Stanton v. Lane (1 Bart 687), 887, 848. State V. Adams (2 Stew., Ala., 239; s. a. Bright Elec. Cas. 286), 61, 62. State V. Adams (65 Ind. 393), 58a State V. Albin (44 Mo. 346), 409. State V. Alder (87 Wis. 554), 95, 236. State V. Aldrich (14 R. L 171), 98. TABLE OF OASES OITED. Hii Beferences are to sectlona. State V. Allen (43 Neb. 651; 62 N. W. Rep. 35), 696, 698. State V. Anderson (1 Coxe, 318), 329. State V. Andriano (93 Mo. 70; s. C, 4 S. W. Rep. 263), 84, 85. State V. Babcock (17 Neb. 188), 209. State V. Bailey (7 Iowa, 390), 269. State V. Baker (88 Wi& 71), 127, 140. State V. Barber (Wyo., 32 Pac. Rep. 14, 26, 28), 705. State V. Barden (77 Wis. 601), 537. State V. Barnes (3 N. D. 319), 208. State V. Basstleld (67 Mo. 336), 210. State V. Bate (70 Wis. 409), 472. State V. Batt (38 La. Ann. 955), 670. State V. Baxter (28 Ark. 129), 369. State V. Bechel (22 Neb. 158), 209. State V. Benton (13 Mont. 306; 34 Pac Rep. 301), 701. State V. Berg (76 Mo. 186), 186, 270, 278. State V. Berry (14 Ohio St. 315), 269, 389. State V. Binder (38 Mo. 450), 168. State V. Bixler (62 Md. 357), 600. State V. Black (53 N. J. 446, 462), 44, 699, 727. State V. Boal (Cush. Elec. Cas. 496; S. c, 46 Mo. 528), 329. State V. Board of Canvassers of Cascade County (12 Mont. 537), 262. State V. Board of Canvassers of Choteau County (13 Mont. 23), 269. State V, Board of Elections of Co- lumbus (9 Ohio Cir. Ct. Rep. 134), 64. State V. Boecker (56 Mo. 17), 348. State V. Bonnell (35 Ohio St. 10), 652, 658, 654, 669. State V. Boone (98 N. C. 573), 265. State V. Bowman (45 Neb. 752), 397. State V. Boyett (10 Ired., N. C, 336), 587, 615. State V. Bruce (5 Oreg. 68), 608. State V. Butts (31 Kan. 537), 127, 128, 130, 131. State V. Calvert (98 N. C. 580), 265, 500, 550. State V. Canvassers (36 Wis. 498), 384 State V. Canvassers (17 Fla. 9), 4ia State V. Carney (3 Kan. 88), 417. State V. Carroll (17 R L 591), 178. State V. Cavers (22 Iowa, 343), 264. State V. Churchill (15 Minn. 455), 298, 817. State V. Circuit Judge (9 Ala. 338), 264. State V. Clark (3 Nev. 566), 352. State V. Clayton (27 Kan, 443), 352. State V. Cohoon (12 Ired. 178), 601. State V. Collier (72 Mo. 12; 18 Am. Law Reg. 768), 333. State V. Collier (15 Mo. 298), 316. State V. Collins (2 Nev. 351), 147, 253. State V. Commissioners (20 Fla. 859), 139. State V. Commissioners (23 Elan, 264), 270. State V. Commissioners (35 Kan. 640), 401, 507, 571, 584. State V. Commissioners (6 Neb. 474), 209. State V. Commissioners (8 Nev. 309), 417. State V. Connor (86 Tex. 133), 226. State V. Constantino (40 Ohio St. 437), 212. State V. Corner (22 Neb. 265), 132. State V. County Judge (7 Iowa, 186), 269. State V. Cunningham (81 Wis. 497), 34. State V. Daniels (44 N. H. 388), 289. Hr TABLE OF CASES CITED. Beferences are to sections. State V. Dellwood (38 La. Ann. 1229), 340. State V. Denison (46 Kan. 359), 88. State V. Dillon (32 Fla. 548), 4, 49, 50, 110, 126, 147, 700. State V. Doherty (25 La. Ann. 119), 353. State V. Douglass (7 Iowa, 413), 606, 609. State V. Dunn (Minor, Ala., 46), 402. State V. Dunnewirth (21 Ohio St. 216), 267, 268, 506. State V. Dustin (5 Oreg. 375), 333. State V. EUwood (12 Wis. 552), 540. State V. Erickson (87 Wis. 180), 527. State V. Ferguson (31 N. J. L. 107), 352. State V. Ferris (42 Conn. 560), 647. State V. Fitts (49 Ala. 402), 352. State V. Fitzgerald (37 Minn. 26), 47. State V. Fitzgerald (44 Mo. 425), 380. State V. Fitzpatrick (4 R. L 269), 614 State V. Foxworthy (29 Neb. 341), 540. State V. Francis (95 Mo. 44), 210. State V. Frest (4 Harr., Del, 558), 97. State V. Funck (17 Iowa, 361, 365), 38Q. State V. Garesche (65 Mo. 480), 412. State V. Gates (43 Conn. 533), 529. State V. Gay (59 Minn. 6; 60 N. W. Rep. 676), 716, 719. State V. Gibbs (13 Fla. 55), 418. State V. Giles (1 Chand. 112), 329. State V. Goetz (22 Wis. 363), 184 State V. Goflf (15 R. L 505), 336. State V. Goldthwait (16 Wis. 146), 540. State V. Goowin (69 Tex. 55), 251. State V. Governor (1 Dutch,, N. J., 348), 263, 317. State V. Granville (45 Ohio St. 264), 607. State V. Green (78 Mo. 188), 212. State V. Greer (78 Mo. 188; s. C, 8 Am. & Eng. Corp. Cas. 322), 664 State V. Griffey (5 Neb. 161), 529, 533. State V. Grizzard (89 N. C. 115), 97. State V. Hall (26 La. Ann. 58), 443. State V. Hamil (97 Ala. 107), 401. State V. Hanson (87 Wis. 177), 527. State V. Harrison (38 Mo. 540), 264 State V. Hart (6 Jones, 389), 587, 615. State V. Harwood (36 Kan. 236), 171, 286. State V. Hauss (43 Ind. 105), 348. State V. Hill (20 Neb. 119), 262. State V. Hilmantel (21 Wis. 566), 136. State V. Hilmantel (23 Wis. 422), 492. State V. Hogan (91 Iowa, 510; 60 N. W. Rep. 108), 720. State V. Horan (85 Wis. 94), 23a State V. Houston (40 La. Ann. 393), 385, 410, 411. State V. Jenkins (43 Mo. 261), 147. State V. Johnson (17 Ark. 407), 308. State V. Jones (19 Ind. 218, 356), 176, 184 263, 358. State V. Judge (13 Ala. 805), 97, 529, 406, 527&. State V. Kavanagh (24 Neb. 506), 411. State V. Kempf (69 Wis. 470), 380. State V. Kraft (18 Oreg. 550), 492. State V. Krueger (Mo., 35 S. W. Rep. 604), 603. State V. Lansing (46 Neb. 514), 180. State V. Lean (9 Wis. 279), 49. 50. State V. Leavitt (33 Neb. 285), 129. TABLE OF OASES CITED. It References are to sections. State V. Lehre (7 Rich. Law, S. C, 234), 671. State V. Lesueur (103 Ma 253; 15 S. W. Rep. 539), 697, 698, 705. State V. Lesueur (Mo., 38 S. W. Rep. 325), 698. State V. Livingstone (1 Houst C. C, Del, 109), 108. State V. Lupton (64 Ma 415), 356. State V. Macomber (7 R. L 349), 587, 588. State y. Mason (14 La. Ann. 505), 565. State V. Mason (44 La. Ann. 1065), 262. State V. Matthews (87 N. H. 450), 637. State V. Mayor (37 Ma 270, 272), 208. State T. McClarnon (15 R. L 462), 58a State V. McDonald (4 Harr., DeL, 555), 289, 588. State V. McElroy (44 La. 796), 547, 720. State V. McFadden (46 Neb. 668), 262. State V. McKinney (25 "Wis. 416), 181. . State V. McMillin (108 Ma 153; 18 S. W. Rep. 784), 699. State V. Merchant (37 Ohio St. 251), 662. State V. Miller (Ma, 33 a W. Rep. 1149), 603. State V. Minnick (15 Iowa, 123), 598. State V. Montgomery (25 La. Ann. 119, 138), 341. State V. Moore (3 Dutch. 105), 605. State V. Morris (12 Am. Law Reg. 82), 199. State V. Murray (28 Wis. 96), 346. State V. Nicholson (102 N. C. 465), 22a State V. Norris (37 Neb. 299), 81, 228, 706. State V. Noyes (10 Fost.,N. H.,279), 198. State V. O'Day (69 Iowa, 368), 222. State V. O'Harne (58 Vt 718), 77. State V. O'Neall (24 Wis. 149), 198. State V. Old (95 Tenn. 723), 126. State V. Olin (23 Wi& 309, 327), 215, 483, 484, 492. State V. Orris (20 Wis. 235), 184. State V. Parker (26 Vt. 857), 199. State V. Patterson (98 N. C. 598), 437. State V. Pearson (97 N. C. 434), 602. State V. Penny (10 Ark. 621), 84 State V. Philbrick (84 Me. 562), 586. State V. Porter (4 Harr., Del., 556), 289, 588. State V. Pritchard (13 Am. Law Reg. 514), 354. State V. Purdy (36 Wis. 213), 215, 216, 333. State V. Randall (35 Ohio St. 64), 390. 413. State V. Ritts (7 Am. Law Reg. 88), 163. State V. Robb (17 Ind. 536X 289, 295. State V. Robinson (1 Kan. 17), 147. State V. Rodman (43 Mo. 256), 264, 309, 402. State V. Roper (46 Neb. 730), 401. State V. Russell (84 Neb. 116), 225, 411, 720. State V. Saxon (30 Fla. 668), 536. State V. Scarboro (110 N. C. 232), 135, 137. State V. Shelley (15 Iowa, 404), 602. State V. Sherwood (15 Minn. 221), 317. State V. Skirving (19 Neb. 497; & a, 27 N. W. Rep. 723), 181. State V. Slover (126 Ma 652), 378. State V. Smith (18 N. H. 91), 590. Ivi TABLE OF CASES CITED. References are to sections. State V. Smith (14 Wia 497), 329, 346. State V. Smith (4 Wash. St 661), 165. State V. Somers (96 N. C. 467), 335. State V. Statem (6 Cold. 233), 57. State V. Steers (44 Mo. 223), 261, 264, 309, 387. State V. Steinbom (Wis., 66 N. W. Rep. 798), 531, 542. State V. Stevens (23 Kan. 456), 333, 414. State V. Stinson (98 N. C. 591), 437. State V. Stewart (96 Ohio St. 216), 436. State V. Stumph (23 Wis. 630), 136, 468. State V. Sullivan (45 Minn. 309), 346. State V. Sutterfield (54 Mo. 391), 210. State V. Symonds (57 Me. 148), 122. State V. Taylor (15 Ohio St 10, 114), 387. State V. Thayer (31 Neb. 82), 226. State V. Thrasher (77 Ga. 671), 399. State V. Tierney (23 Wis. 430), 540. State V. Tissot (40 La. Ann. 598), 369. State V. Town Council (18 R. L 258), 62. State V. Townsley (56 Mo. 107), 374 State V. Trigg (72 Ma 365), 270. State V. Trimbell (12 Wash. 440), 261, 269. State V. Tucker (32 Ma App. 620), 185. State V. Tudor (5 Day, 329), 175, 660. State V. Tuttle (53 Wis. 45), 49. State V. Tweed (3 Dutch. Ill), 605. State V. Vail (53 Ma 97), 329. State V. Van Buskirk (4 N. J. L. 463), 307. State V. Van Camp (36 Neb. 91), 225, 261,385,547,706. State V. Walsh (63 Conn. 26), 528, 535. State V. Weed (60 Conn. 18), 23a State V. Welch (21 Minn. 22), 60a State V. Wells (8 Neb. 105), 349. State V. West (33 La. Ann. 1261), 34a State V. Whittemore (50 N. H. 245), 72. State V. Whittemore (11 Neb. 175), 406. State V. Williams (25 Me. 561), 596, 601. State V. WilUams (5 Wis. 308), 49, 349. State V. Wilson (24 Neb. 139), 261. State V. Winkelmeir (35 Ma 103), 209. State V. Wolf (17 Oreg. 119), 536. State T. Wright (10 Nev. 536), 655. State V. Wrightson (56 N. J. L. 126), 212. State v. Young (29 Minn. 536), 18. Stebbins v. Merritt (10 Cush. 27), 654 Steele v. Calhoun (61 Miss. 556), 539. Steele v. Meade (Ky., 33 a W. Rep. 944), 269. Steinwehr v. State (5 Sneed, 586), 594 Stemper v. Higgins (38 Minn. 223), 232, 478. Stephens, Case of (4 Gray, Mass., 550), 74 Stephens v. People (89 IlL 337), 153, 181. Sterling v. Homer (74 Md. 573), 96. Sterrett v. Mc Adams (Ky., 34 S. W. Rep. 903), 222. Steward v. Peyton (77 Ga. 668), 408. Stewart v. Foster (3 Binn. 110), 66. Stewart v. Hodges (3 Ch. Leg» News, 117), 329. TABLE OF CASES CITED. Ivii References are to sections. Stewart v. Kyser (105 Cal. 459), 103, 104. Stinson v. Sweeney (17 Nev. 309), 136, 236. Stockdale v. Hansard (9 Ad. & E. 231), 637. Stockholders v. Railroad Co. (12 Bush, Ky., 62), 652. Stockton V. Powell (29 Fla. 1), 222. Stockton's Case (Cong. Globe, 1865, 1635), 375. Stolbrand v. Aikin (2 Ells. 603), 448. St. Joseph Township v. Rogers (16 Wall. 644), 208. St. Lawrence Steamboat Co., In re (44 N. J. L. 529, 539), 646, 660, 668, 671. St. Louis County Court v. Sparks (10 Mo. 118), 251, 402. Strasberger v. Burk (13 Am. Law Reg. 607), 220. Strobach v. Herbert (2 Ella 5), 180, 531. Strong, Petitioner (20 Pick. 484), 270, 418. Sturgeon v. Korte (34 Ohio St. 625), 97, 98, 104. Swann v. Burk (40 Miss. 263), 368. Swepston v. Barton (39 Ark. 549), 337. Switzler v. Anderson (2 Bart. 874), 278, 309. Switzler v. Dyer (2 Bart. 777), 309. Sykes v. Spencer (43d Cong.), 629, 631. Sypher v. St. Martin (3 Bart. 699), 561, 562. T. Talbott V. Dent (9 B. Mon. 526), 208. Talcott V. Philbrick (59 Conn. 472), 538, 706. Taliafero v. Lee (97 Ala. 92), 424. Taliaferro v. Hungerford (CI. & H. 246), 464. Talkington v. Turner (71 111. 334), 529. Tarbox v. Sughrue (36 Kan. 325; a C, 12 Pac. Rep. 935), 550. Taylor v. Bleakley (55 Kan. 1), 720. Taylor v. Griswold (2 Green, 222; s. a, 14 N. J. L. 323), 175, 642, 651, 660. Taylor v. Reading (3 Bart. 661), 104, 527a. Taylor v. Taylor (10 Minn. 107). 338, 251, 264. Tebbe v. Smith (108 CaL 101), 232, 471, 537, 719, 720, 721. Temple v. Mead (4 Vt. 535), 547, 548. Tennessee Representatives (43d Cong.), 457, 461. Territory v. Ashenfelter (4 New Mex. 85), 355. Texas v. White (7 Wall. 721), la Thobe V. Carlisle (Mob. 423, 523), 249, 274, 429, 452, 507. Thomas v. Hinkle (35 Ark. 450), 301. Thomas v. Owens (4 Md. 189), 59. Thompson v. Ewing (1 Brewst. 67, 68, 69, 77, 103, 400, 404), 61, 96, 100, 114, 263, 435, 442, 459, 5%B, 580. Thompson v. Warner (Md., 34 AtL Rep. 830), 98. Threadgill v. Railroad Co. (73 N. C. 178), 255. Todd V. Board of Election Commis- sioners (104 Mich. 474), 696. Todd V. Jane (1 Bart. 555), 450. Todd V. Stewart (14 Cal. 386), 437. Tomlin v. Farmers', etc Bank (52 Mo. App. 430), 671. Town of Fox v. Town of Kendall (97 111. 73), 128. Town of Highlands, In re (33 N. Y. Supp. 137), 89. Iviii TABLE OF CASES CITED. Beferonoes are to sections. Town of Valverde v. Shattuck (19 Colo. 104), 49. Trigg V. Preston (CL «fe H. 78), 275, 555. Trumbull, Case of (1 Bart 619), 326. Trustees v. Garvey (80 Ky. 159), 712. Trustees v. Gibbs (2 Cush. 39), 167, 581. Tucker v. Aikin (7 N, a 113, 140), 216, 333. Tuley V. State (1 Ind. 500), 670. TuUos V. Lane (45 La. 333), 88, 488. Turner v. Drake (71 Mo. 285), 549a. Turney v. Marshall (1 Bart 167), 326. Twitchell v. Blodgett (13 Mich. 27), 90, 15& u. Umstead v. Buskirk (15 Ohio St 114), 387. Underwood v. White (27 Ark. 882), 4oa Union Insurance Ca, In re (22 Wend. 591), 666. United States v. Addison (6 WalL 291), 367. United States v. Anthony (11 Blatch. 200), 63. United States v. Ballard (13 Int Rev. Rec. 195), 606. United States v. Barnabo (14 Blatch. 74), 121. United States v. Bayard (17 Am. & Eng. Corp. Gas. 485,498), 411. United States v. Bowen (6 D. C. 196), 420. United States v. Brown (58 Fed. Rep. 558), 60a United States v. Burley (14 Blatch. 91), 589. United States v. Carruthers (15 Fed. Rep. 309), 599. United States v. Chamberlin (32 Fed. Rep. 777), 600. United States v. Clark (22 Fed. Rep. 387), 258. United States v. Clayton (10 Am. Law Reg. 737, 739), 273. United States v. Conway (18 Blatch. 566), 256. United States v. Crosby (1 Hughes, 448), 36. United States v. Cruikshank (92 U. S. 542), 26, 36, 605, 607. United States v. Eagan (30 Fed. Rep. 498), 295. United States v. Hendrick (2 Sawy. 479), 60a United States v. Jaques (55 Fed. Rep. 53), 603. United States v. Johnson (2 Sawy. 482), 603. United States v. Kellar (13 Fed. Rep. 82), 84 United States v. Klein (18 WalL 128), 125. United States v. Laverty (3 Mart 733), 85a. United States v. McBosley (29 Fed. Rep. 897), 257. United States v. Nicholson (8 Woods, a C, 215), 143. United States v. Norsch (42 Fed. Rep. 417), 76. United States v. O'Neill (2 Sawy. 481), 60a United States v. Paddlef ord (9 WalL 531), 125. United States v. Powers (14 Blatch. 223), 72. United States v. Quin (Bright Elec. Gas. 592), 4a United States v. Quin (12 Int Rev. Rec 151), 606. United States v. Reading (18 How.» U. S., 1), 79. TABLE OF CASES CITED. liz References are to sections. United States v. Reese (93 U. S. 214), 36, 40, 46. United States v. Saunders (120 U. S. 126), 335. United States v. Trainor (36 Fed. Rep. 176), 613. United States v. Vallejo (3 Ball. 372), 70. United States v. Watkinds (7 Sawy. 85), 120. United States v. Wright (16 Fed. Rep. 113), 600. United States v. Wright (1 McLean, 512), 352. Upton, Case of (1 Bart. 368), 169. Y. Vail V. Hamilton (85 N. Y. 453), 645. Vailes v. Brown (16 Colo. 462), 443. Vallandigham v. Campbell (1 Bart. 233), 429, 451, 483, 484 Vallier v. Brakke (S. Dak., 64 N. W. Rep. 180, 1119), 720, 723. Van Amringe v. Taylor (108 N. C. 196), 34, 253. Van Bokkelen v. Canaday (73 Me. 198), 537. Vandenberg v. Railroad Co. (29 Hun, 348), 665. Vanderpool v. O'Hanlon (36 Am. Rep. 316; s. C, 53 Iowa, 246), 101. Van Horn's Lessee v. Dorrand (2 DalL 308), 34. Van Ness, Case of (CI. & H. 123), 336, 348. Van Orsdal v. Hazzard (3 Hill, 343), 353. Van Valkenburg v. Brown (43 Cal. 43), 3, 63. Van Valkenburg v. State (11 Ohio, 404), 586. Varney v. Justice (86 Ky. 896), 165. Varnum, Case of (CI. & H, 112), 439. Vint V. Heirs of King (3 Am. Law Reg., O. S., 713), 84. Visches v. Yates (11 Johns. 33), 319. Vote Marks, In re (17 R. L 813), 730. Voting Laws (12 R. L 586), 108. Vowell V. Thompson (3 Cranch, C. C. 438), 645. Voyd V. Mills (53 Kan. 594), 386. w. Waddill V. Wise (Row. 203), 169. Wadsworth Gaslight, eta Co. v. Wright (18 W. R. 738), 671. Waldo V. Martin (3 Carr. & P. 1), 833. Walker v. Ferrill (58 Ga. 513), 349. Walker v. Sandford (78 Ga. 165), 158, 347. Walker v. Oswald (68 Md. 146), 209. Wall, Ex parte (48 Cal. 379), 198. Wallace v. McKinley (Mob. 185), 483, 529, 535, 543. Wallace v. Simpson (2 Bart 552, 42d Cong. 731), 310, 481, 561. Walsh V. People (66 III. 58), 333. Walton V. Beveling (61 111. 301), 386. Ward, In re (30 N. Y. Sup. 606), 103, 104. Ward V. Sykes (61 Miss. 649), 376. Ware v. Hylton (3 DalL 332), 30,33. Warner v. Mower (11 Vt 385), 653, 657. Warner v. People (3 Ben. 272), 368. Warren v. Registration Board (72 Mich. 398; 2 L. R. A. 203), 88. Washburn v. Ripley (CL & H. 679), 230, 231. Washburn v. Voorhis (3 Bart. 54), 515, 571, 572. Weaver v. Given (1 Brewst. 140), 513. Webb V. Ridgely (88 Md. 364), 671. TABLE OF CASES CITED. References are to sections. Webster v. Bymes (34 Cal. 273), 527&. Weckerly v. Geyer (11 S. & R. 35), 289, 291. Weeks v. Ellis (2 Barb. 324), 251. Welch V. Wetzel (29 W. Va. 63), 178, 283. Wells V. Bain (75 Pa. St. 47), 24, 25. Wells V. State Board of Canvassers (50 Kan. 144), 530. Wells V. Taylor (3 Mont. 202; & a, 3 Pac. Rep. 255), 216. West V. Ross (53 Ma 350), 226. West V. West (8 Paige, 433), 84 Westbrook v. Roseborough (14 Cal. 180), 181. West Virginia Cases (Smith, 108), 194 Wheat V. Smith (50 Ark. 266), 176. Wheeler, In re (2 Abb. Pr., N. S., 361), 661. Wheeler v. Board of Canvassers (94 Mich. 448), 377. Wheeler v. Brady (15 Kan. 26), 63. Wheelock's Case (82 Pa. St. 297), 325. Whipley v. McKune (10 Cal. 352), 251. White, Contested Election of (4 Pa. Dist Rep. 363), 107. White, Ex parte (33 Tex. Cr. R 594), 17a White V. Hart (18 Wall 646), la White V. Multnomah County (13 Oreg. 317), 4, 132. Whitney v. Blackburn (17 Oreg. 564), 426, 440. Whitney v. Canique (2 N. Y. 93), 339. Whitteniore's Case (41st Cong.), 362. Whittman v. Zahorek (91 Iowa, 93), 730. Wigginton v. Pacheto (1 Ells. 5), 542. Wilcocks, Ex parte (7 Cow. 4Q3), 645, 647. Wildman v. Anderson (17 Kan. 544), 534 Williams v. State (69 Tex. 868), 539. Williams v. Stein (38 Ind. 89), 548. Williams v. Whiting (11 Mass. 424), 88. Williamson v. Lane (52 Tex. 335), 392. Williamson v. Shandy (13 Wash. 362), 178, 222. Williamson v. Sickles (1 Bart 288), 873. Wilson, Ex parte (114 U. S. 417), 121, 333. Wilson V. Central Bridge (9 R L 590), 649. Wilson V. Hines (Ky., 35 S. W. Rep. 627), 441. Wilson V. State (43 Ala. 299), 612. Wilson V, Town Council of Flor- ence (39 S. C. 897; 40 S. O. 290), 210. Wimmer v. Eaton (72 Iowa, 874), 529, 531. Winthrop, Case of (1 Bart 607), 360. Wolcott's Case (35th Cong.), 637. Wolcott V. Holcomb (97 Mich. 861), 104 296. Wood V. Fitzgerald (3 Oreg. 569), 129. Wood V. Peters (Mob. 79), 326. Wood, etc. Mining Ca v. King (46 Ga. 35), 65a Woodley v. Clio (44 S. C. 374), 63. Woods, In re (5 Misc. 575), 261. Woodward v, Fruitable San. Dist. (99 CaL 564X 17& Worthington v. Post (Mob. 647), 101. Worthy v. Barrett (63 N. a 199), 806a TABLE OF OASES CITED. Izi Beferences are to sections. Wright V. Commonwealth (109 Pa. St. 560), 666. Wright V. Fuller (1 Bart. 153), 429. Wjman v. Lemon (51 CaL 273), 539. Y. Yancy, In re (28 Fed. Rep. 445), 364. Yarbrough, Ex parte (110 U. S. 651, 663), 37, 46, 145. Yeates v. Martin (1 Ells. 52, 484), 165, 251, 539a. Yell, Case of (1 Bart 92), 84a Yester v. City of Seattle (1 Wash. St. 808), 208. Yonkin's County Election (2 Pa. Co. Ct. 550), 94 Young V. Deming (9 Utah, 204), 174 Young V. Simpson (Colo., 42 Pacj. Rep. 666), 97, 222. Yulee V. Mallory (1 Bart 608), 148. z. Zeis V. Passwater (142 Ind. 375), 537. Zeiter v. Chapman (54 Mo. 502), 185. AMERICAN LAW OF ELECTIONS. CHAPTEK I. THE EIGHT TO VOTR ^ 1. Suffrage defined. 2. The object of suffrage. 3. The right to vote not of necessity connected with citizenship. 4. Suffrage not a natural right. 5. The doctrine as stated in the case of Anderson v. Baker. 6. As stated in the case of Blair v. Ridgely. 7. The right to vote distinguished from the right to practice a pro- fession or calling. 8. Electors may be disfranchised by constitutional provision. 9. The American and English theories of the right to vote distin- guished. 10. In the United States, the right of suffrage depends upon the will of the people. 11. Who are the people. 12. Declarations upon the subject contained in the Declaration of Independence and in preambles to constitutions. 13. The theories of early speakers and writers. 14. Conclusion from the foregoing. 15. Arguments of counsel in Chisholm, Ex'r, v. State of Georgia. 16. View of the Supreme Court of the United States in Penhallow V. Doane's Adm'rs. 17. Doctrine as stated by Judge Taney in Dred Scott v. Sanford. 18. At the time of the formation of the Union, the people were the citizens, independent of age or sex. 19. How did the Constitution become binding upon the people. 20. The theory of consent by ratification. 21. View of the Supreme Court of the United States in Inglis v. Trustees of Sailor's Snug Harbor. 22. View of the same court in Ware v. Hylton. 23. The provisions of constitutions binding upon all citizens, iri e- spective of age or sex. 1 2 ELECTIONS. [chap. I. § 24 Have the people, by constituting the electors, surrendered the sovereignty. 25. View of Supreme Court of Pennsylvania in case of Wells v. Bain, to the effect that the sovereignty still resides in the entire citi- zenship. 26. The same view expressed in Anderson v. Baker, by Supreme Court of Maryland. 27. An investigation of the question from a practical standpoint. 28. Same subject continued. 29. Is the body politic sovereign only in theory, or is it also sover- eign as a practical fact. 30. Same subject continued. 81. The right to fix the qualifications of voters is in the people of the respective States, subject to limitation contained in Fifteenth Amendment. 83, Qualifications of electors determined by the people in constitu- tional conventions. 33. Power of the people to limit the discretion of voters in the choice of persons to fill oflSces. 34 Inability of the people to withdraw political power, except in the manner provided by Constitution. 85. Exercise of the elective franchise by a portion of the commu- nity a fair and useful restriction. § 1. Suffrage has been defined by "Webster as " a voice given in deciding a controverted question, or in the choice of a man for an otfice or trust." According to Worcester it is " a voice or opinion of a person in some matter, which is commonly to be determined by a majority of voices or opinions of persons who are empowered to give them." In the United States suffrage is a privilege, franchise or trust conferred by the people upon such persons as it deems fittest to represent it in the choice of magistrates or in the performance of political duties which it would be inexpedient or inconvenient for the people to perform in a body. The person upon whom the franchise is conferred is called an elector or voter. No community extends suffrage to all per- sons, but places such restrictions upon it as may best subserve the ends of government.^ iBxirch V. Van Horn, 2 Bart, 205; Jamison's Const. Con., sec. 337; 2 Wilson's Works, Appendix, p. 570. CHAP. I.] EIGHT TO VOTE. 8 § 2. The object of suffrage is the continuity of govern- ment and the preservation and perpetuation of its ben- efits.i In the United States the object of suffrage is twofold: First, to select representatives of the people for their govern- ment; and second, to determine the will of the people upon such questions as may be submitted to them. Viewing suf- frage as a means of selecting representatives, it has been defined as " the delegation of the power of an individual to some agent." ^ § 3. The right to vote is not of necessity connected with citizenship.^ The rights of the citizen are civil rights, such, as liberty of person and of conscience, the right to acquire and possess property, all of which are distinguishable from the political privilege of suffrage. This has been expressly held by the Supreme Court of the United States* and by the courts of last resort in California ' and in the District of Columbia,* where women, though conceded to be citizens within the meaning of the Fourteenth Amendment of the Federal Constitution, have nevertheless been denied the right of suffrage as an incident thereto. The history of the country shows that there is no foundation in fact for the view that the right of suffrage is one of the " privileges or immunities of citizens." In some of the States only such citizens as were freeholders or owners of personal property were originally allowed to vote.^ 1 Cyc. of Political Science, vol. 3, p. 822. 2 Webster's Works, vol. 6, p. 221. 3 Anderson v. Baker, 23 Md., 531. < Minor v. Happersett, 21 Wall., 162. * Van Valkenberg v. Brown, 48 Cal., 43. 6 Spencer v. Board of Registration, 1 MacArthur, 169, 29 Am. Rep., 582. ^ There have been in force at different times in the history of the American Colonies and States, three restrictions on the right of suf- frage: First, an educational qualification; second, a property or eco- nomic qualification; and third, a moral qualification. The original colonists, with unimportant exceptions, all had a voice in public affairs, but the influx of men of other blood, religion and 4: ELECTIONS. [CHAP. I. In 'New York and ISTorth Carolina, negroes, who were not citizens, and who were, in fact, incapable of becoming such,^ were granted the privilege under certain conditions. In Wisconsin and Michigan, Indians were permitted to vote, and social standing soon led them to introduce certain restrictions upon the right of suffrage, commonly based on possession of property or on profession of religion. The first legislative body that ever sat in America, and which con- vened at Jamestown, July 30, 1619, was elected by all the male inhabit- ants. In Virginia from the first years to 1665, all settlers had a voice in public affairs. After various changes in the law, the franchise was in 1670 restricted to freemen and housekeepers, the freehold require- ment excluding all who were not possessed of a freehold of fifty acres, or a town lot A similar requirement was made in North Carolina of voters for senators. The first legislative body in New England met at Plymouth in 1620, and was composed of all male inhabitants, and this township type and school of government was adopted in other New England settlements. The Massachusetts charter of 1691 restricts suffrage to the possession of an estate of freehold in land of the value of forty shillings per annum, or other estate of the value of forty pounds. In Maryland the right of suffrage was limited, in 1681, to freemen possessing a freehold of sixty acres, or having a visible personal estate of forty pounds. At the beginning of the eighteenth century, a freehold qualification had become common in the colonies, and in some cases pecuniary qual- ifications were required. In the colonies of Massachusetts, New Haven, and Connecticut, church membership was required. In New Hamp- shire, Pennsylvania, Delaware and South Carolina, the right of suffrage was given to all resident tax-paying freemen. In Pennsylvania, the eldest sons of freeholders, over twenty-one, could vote without payment of taxes. In other States, a pecuniary qualification was required, ex- cept that in North Carolina resident tax-paying freemen could vote for members of the Hoixse of Commons. In New York, none could vote for Governors or Senators unless possessed of unincumbered real estate worth $250, or for members of the Assembly unless they had freeholds worth $50, or paid $10 annual rent. In Rhode Island, voters were re- quired to own freeholds worth $120, or their eldest sons must be pos- sessed of an estate worth that amount. In the other States, property, real or personal, worth from $30 to $200, was sufficient to qualify a voter. The Revolution of 1776 brought about an extension of the electoral franchise. The last survival of a religious test appears in the Consti- CHAP. I.] EIGHT TO VOTE. 6 in Illinois, Indiana and Minnesota unnaturalized foreigners were admitted,' In no State have all citizens ever been permitted to vote, there having always been a requirement, at least, as to age.'' § 4r. The right to vote is not a natural right, such as the right to personal security, personal liberty, and the right to acquire and enjoy property. It is not such a right as be-^ longs to a man in a state of nature, and even in the organized government he receives it as a conferred franchise. In the United States the people are the source of all political | power, and it is within their power to give, refuse or re- strict the elective franchise. And when conferred, it is not tution of South Carolina (Article XIII), in force from 1778 to 1790, limit- ing suffrage " to every free white man who acknowledges the being of a God, and believes in a future state of rewards and punishmenta" When the Federal Constitution was adopted, each State was left to prescribe its own qualifications for voters. Since 1789, freehold suffrage has given away to manhood suffrage. Eleven of the thirteen original States have abolished the tax and property tests, as follows: New Hamp- shire, Maryland, Massachusetts, New York, Delaware, New Jersey, Con- necticut, South Carolina, North Carolina and Virginia. The only new States that have required a property or tax qualification are Tennessee, admitted in 1796, with freehold qualifications, abolished in 1834; Ohio, admitted with tax qualification in 1802, abolished in 1857; Louisiana, admitted in 1812, with tax qualification, abolished in 1845; and Mississippi, admitted in 1817, with a tax qualification, abol- ished in 1832. For further historical information, and for a philosophical treatment of the subject, see the following authorities: Lalor's Cyc. of Political Science, p. 822 et seq, Frothingham's Rise of the Republic, p. 25. Cook's Virginia, p. 222. Hildreth's History of the United States, voL 3, p. 881. De Tocqueville in America, vol. 1, ch. 5. Mills' Representative Government, ch. 7. Lieber's Civil Liberty, ch. 16. Woolsey's Political Science, voL 1, p. 299; vol 2, p. 111. Cooley's Constitutional Limitations, ch. 17. Bancroft's History of the United States, vol. 1, p. 537; vol. 2, p. 7. 1 Van Valkenburg v. Brown, supra; Minor v. Happersett, supra. 2 " The right to vote is not conferred by the mere act of naturalizs> tion." Spragins v. Houghton, 3 IlL, 377. 6 ELECTIONS. [chap, I. a vested right, but may be taken away by the power that gave it.^ In Blair v. Ridgely^ it is said by the court that ," the right to vote is not vested, it is purely conventional, and may be enlarged or restricted, granted or withheld, at pleasure, and without fault." The only rights connected with the exercise of suffrage are the right of the Common- wealth or aggregate, body of the governed to determine who the electors shall be, and the right of every citizen to be rightly and fairly represented by electors.' Some author- ities may be found in which the right of suffrage is referred to as a vested right,* but in these cases the word " vested " is used as meaning incapable of being taken away, except by the power which gave it. No exception can be taken to the use of the word in this sense, but certainly no authority can be found in this country for the proposition that the right to vote is vested^ in the sense that any proprietary or permanent right attaches to it.*^ § 5. In Anderson v. Baker ^ it is said : " The right of suf- frage is not an original, indefeasible right, even in the most free of republican governments ; but every civilized society has uniformly fixed, modified and regulated it for itself, ac- cording to its own free will and pleasure, and in these United States every constitution of government has assumed, as a fundamental principle, the right of the people of a State to alter, abolish and modify the form of its own govern- 1 Blair v. Ridgely, 41 Mo., 161 and 175; Luther v. Borden, 17 U. S., 15; Webster's argument in Luther v. Borden, Webster's Works, voL 6, p. 221 ; State V. Dillon, 23 Fla., 545; Spencer v. Board of Registration, 1 Mac- Arthur, 169, 29 Am. Rep., 582; Desty's 'fe'ed. Const, 283, note 21; Ander- son V. Baker, 23 Md., 531. ^ 2 41 Mo., 178. ' Jamison on Const. Conventions, sec 337. < White V. County Commissioners of Multnomah Co., 13 Oreg., 317; Rich V. Flanders, 89 N. a, 385; Eakin v. Raub, 12 Serg. & R,, 485. 6 It cannot in a confined sense be called property. It is not assets to pay debts, nor does it descend to the heir or administrator. Brown v. Hummell, 6 Pa. St, 86; White v. County Commissioners of Multnomah Co., supra. 6 23 Md., 596. CHAP. I.] EIGHT TO VOTE. 7 ment, according to the sovereign pleasure of the people. The right to vote, like the right to hold oflBce, being thus con- ferred upon the voter by the sovereign will of the people, in their organic law or constitution of government, the ques- tion, upon whom it ought to be conferred, and what should constitute its boundaries and limits — in other words, what should qualify and what should disqualify — is one which the people themselves are to settle." § 6. In Blair v. Ridgely^ the question at issue arose out of the provision of Article II, Section 3, of the Constitution of 1866 of the State of Missouri. By this section it was pro- vided that no person should be deemed a qualified voter who had ever been in armed hostility to the United States, or to the government oT the State of Missouri ; that every per- son should, at the time of offering to vote, take an oath that he was not within the inhibition of this section, and that any person declining to take such oath should not be allowed to vote. The plaintiff, at an election held in the city of St. Louis on November 7, 1865, offered to vote, but refused to take the oath prescribed by the Constitution. His vote being rejected, he brought his action against the judges of the election for damages. The case was taken to the Supreme Court of Mis- souri, where it was argued exhaustively, and with much learning, by eminent counsel, and the argument is to be found in full in the reports of the Supreme Court of Missouri, vol- ume 41. It was contended by the plaintiff that the section of the Constitution in question was in violation of the Con- stitution of the United States, being a biU of attainder and an ex post facto law within the meaning of that instrument, and, in consequence, null and void. But the Court held against this contention, drawing the distinction between laws passed to punish for offenses in order to prevent their repetition, and laws passed to protect the public franchises and privileges from abuse by falling into unworthy hands. It is said by the Court that " the State may not pass laws in 141 Mo., 161. 8 ELECTIONS. [OHAP. I. the form or with the effect of bills of attainder, ex post facto laws, or laws impairing the obligation of contracts. It may and has full power to pass laws, restrictive and exclusive, for the preservation or promotion of the common interest as political or social emergencies may from time to time re- quire, though in certain instances disabilities may directly flow in consequence. It should never be forgotten that the State is organized for the public weal as well as for indi- vidual purposes; and while it may not disregard the safe- guards that are thrown around the citizen for his protection by the Constitution, it cannot neglect to perform and do what is for the public good." § Y. It was argued in Blair v. Eidgely that the decision of the Supreme Court of the United States in Cummings v. Missouri^ where it was held that this section of the Mis- souri Constitution, so far as it provided an oath to be taken by preachers, was in the nature of pains and penalties, and consequently void, was decisive of the Blair case. But the distinction between the right to practice a profession or fol- low a calling, and the right to vote, is clearly stated in the opinion of Judge Wagner, as foUows : " The decision of the Supreme Court of the United States in the Cummings case proceeds on the idea that the right to pursue a calling or profession is a natural and inalienable right, and that a law precluding a person from practicing his calling or profession on account of past conduct is inflicting a penalty, and there- fore void. There are certain rights which inhere in and attach to the person, and of which he cannot be deprived, except by forfeiture for crime, whereof he must be first tried and convicted, according to due process of law. These are termed natural or absolute rights. * * * But is the right to vote or to exercise the privilege of the elective franchise a right either natural, absolute or vested ? It is certain that in a state of nature, disconnected with government, no per- son has or can enjoy it. That the privilege of participating 14 Wall, 277. CHAP. I.] EIGHT TO VOTE. 9 in the elective franchise in this free and enlightened country- is an important and interesting one is most true. But we are not aware that it has ever been held or adjudged to be a vested interest in any individual." § 8. Suffrage in the United States not being a vested right, it results that persons who have enjoyed and exercised the privilege, and who have been qualified electors, may be entirely" disfranchised and deprived of the privilege by con- stitutional provision, and such persons are entirely without a remedy at law.^ § 9. It is important in this connection to distinguish the American theory of the elective franchise from that which prevails in England. In the latter country the right to vote is a vested right attached to and inseparable from an estate of freehold. It is held from the King as an incident of the freehold, and the right can no more be taken away than the freehold itself. The origin and character of the right is best stated in the opinion of Chief Justice Holt, in Ashhy v. White et al? The plaintiff in that case, being a " burgess " and an inhabitant of the borough of Aylesbury, was refused permission to vote by the constables of the borough, where- upon he brought his suit to recover damages. Justices Powell, Powys and Gould held that the action could not be maintained, but Holt, C. J., dissented and gave an opinion for the plaintiff. An appeal was prosecuted to the House of Lords, where the judgment of the King's Bench was re- versed and Justice Holt's views sustained and adopted. The Chief Justice, maintaining the right of the plaintiff to vote, shows that the Commons of England have a right to participate in the government, which right is exercised by representatives chosen by themselves; that this representa- tion is exercised either in the quality of knights of shires, citizens of cities, or burgesses of boroughs. The origin and ^ " Every man has a right to be governed justly, but it does not fol- low that every man has a right to be a governor." Alden's Science of Government, p. 19. 2 2 Ld. Raymond, 938 (1 Smith's Leading Cases, p. 472). 10 ELECTIONS. [chap. I. character of suffrage in England is then stated as follows: " The election of knights belongs to the freeholders of the counties, and it is an original right vested in and inseparable from the freehold, and can no more be severed from the freehold than the freehold itself can be taken away. Before the statute of 8 Hen. 6, ch. 7, auy man that had a freehold, though never so small, had a right of voting; but by that statute the right of election is confined to such persons as have lands or tenements to the yearly value of forty shill- ings at least, because, as the statute says, of the tumults and disorders which happened at elections by the excessive and outrageous number of electors ; but still the right of election is an original right incident to and inseparable from the free- hold. As for citizens and burgesses, they depend on the same right as the knights of shires and differ only as to the tenure ; but the right and manner of their election is on the same foundation. Now, boroughs are of two sorts: first, where the electors give their voices by reason of their bur- gership ; or, secondly, by reason of their being members of the corporation. Littleton, in his chapter of Tenure in Bur- gage, 162 C. L., 108 b, 109, says: 'Tenure in burgage is where an ancient borough is, of which the king is lord, of whom the tenants hold by certain rent, and it is but a ten- ure in socage;' and in section 164: he says, 'and it is to wit that the ancient towns called boroughs be the most ancient towns that be within England, and are called boroughs be- cause of them come the burgesses to parliament.' So that the tenure of burgage is from the antiquity, and their tenure in socage is the reason of their estate, and the right of elec- tion is annexed to their estate." § 10. It will be seen from the foregoing that while the right to vote in England is a political privilege granted by the King, in the American States it depends upon the will of the people themselves. This distinction is directly trace- able to the difference between the English idea of an orig- inal compact or agreement, by which the people consented to surrender to the King all political sovereignty, he in CHAP. I.] EIGHT TO VOTE. 11 turn granting suffrage to the freeholders as a vested right, and the American theory that all sovereignty resides in the people and is only delegated by them. The Constitution of the United States and of the several States rests upon the principle of a representation by the people, and upon the further principle that no power is exercised of personal right but by delegation.^ § 11. Granting that the sovereignty in this country, viz., the supreme power — the right to make or change the form of government — resides in the people, the question, " Who/ are the people?" becomes of importance, and its solution, in\ the light of opinions of the courts, is not free from difficulty^ An examination of the cases bearing upon the question will show, however, that what appears to be a difference of opin- ion is really a disagreement caused by a consideration of the question from different standpoints ; those cases in which the question has been considered theoretically leading to the conclusion that the sovereignty resides in the entire com- munity, irrespective of age or sex, while a portion of the cases, which have considered the question from a practical point of view, have reached the conclusion that the sov- ereignty is in the voters. In the present consideration of the question, it is proposed to determine first who were regarded as the people at the time of the founding of the government. The answer to this inquiry is to be found in the preambles to constitutions, the opinions of the founders of the government as expressed in their writings and public addresses, and in the opinions of the courts. § 12. So long as the American colonies remained subject to Great Britain, there were, in a constitutional sense, no people. Parliament being the body politic. But when the colonies renounced allegiance to George III., every citizen of the colonies became equal with every other citizen, civilly and politically. The Declaration of Independence declared 12 Wilson's Works, note A, Appendix; 1 Sharswood's Blackstone, 49, note 13k 12 ELECTIONS. [chap. L that all men are created equal ; that governments derive their just powers from the consent of the governed; and that when any form of government becomes destructive of the proper ends of government, that it is the right of the people to alter or abolish it. The framers of the Declaration of Independence declared that the legislative power, incapable of annihilation, had returned to the people at large for their exercise. The preamble to the Constitution of the United States announces peremptorily and with authority that " We, the people of the United States, do ordain and estab- lish this Constitution." The Constitution of the State of New York, adopted in 1777, contained this clause : " This convention, therefore, in the name of and by the authority of the good people of this State, doth ordain, determine and declare that no authority shall, on any pretense whatever, be exercised over the peo- ple or members of this State but such as shall be derived from and granted by them." The preamble of the Consti- tution of Massachusetts contains this declaration : " The body politic is formed by voluntary association of individ- uals. It is a social compact by which the whole people covenants with each citizen, and each citizen with the peo- ple, that all shall be governed by certain laws for the public good." Similar declarations are found in the Constitution of Maryland, of 1776 ; in that of Delaware, of 1792 ; in that of New Hampshire, of 1784; in that of North Carolina, of 1776, and in that of Yermont, of 1777. The Constitution of Con- necticut, of 1818, provides, " That all men, when they form a social compact, are equal in rights ; that all political power is inherent in the people, and all free governments are founded on their authority; that they have at all times an undeniable and indefeasible right to alter their form of gov- ernment in such manner as they may think expedient." § 13. The speeches and writings of the founders of the government are pregnant with the idea that the sovereignty was at the beginning in the entire people. Daniel Webster, in his argument in Luther v. Borden^ said that the only CHAP. I.] BIGHT TO VOTE. 13 source of political power is the people, and that the peo- ple are sovereign.^ Mr. Hallett, in his argument in the same case, said : " All the American writers use the term ' people ' to express the entire numerical aggregate of the 1 In Daniel Webster's celebrated argument in Luther v. Borden, supra, growing out of the Dorr rebellion, is found a clear and concise state- ment of the political system of the American Statea An analysis of the statement is as follows: The only source of political power is the people. The people (viz., the entire community) are sovereign, but this is not the sovereignty which acts in the daily exercise of sovereign power. The exercise of legislative power, and the other powers of gov- ernment, directly by the people, is impracticable. They must be exer. cised by the representatives of the people; and this sovereign power having been delegated and placed in the hands of the government, that government becomes what is popularly called the State. The basis of this representation is suffrage. The right to choose representatives is every man's part in the exercise of sovereign power. To have a voice in it, if he has the proper qualifications, is the portion of political power belonging to every elector. This is the beginning. That is the mode in which power emanates from its source and gets into the hands of conventions, legislatures, courts and executive officers. It begins in suffrage. Suffrage is the delegation of the power of an indi- vidual to some agent. This being so, then follow two other great principles of the American^ystem : First, the right of suffrage must be guarded, protected and secured against force and against fraud; and second, its exercise must be prescribed by previous law. That every man entitled to vote may vote, and that his vote may be sent forward and counted, and so he may exercise his part in sovereignty in com- mon with his fellow-citizens. There is another principle, equally true, that the people often limit themselves and set bounds on their own power to secure the institu- tions which they have established against the sudden impulses of mere majorities. They also limit themselves in regard to the qualifications of electors, and in regard to the qualifications of the elected. In every State the people have precluded themselves from voting for every one they might choose to vote for, and have limited their own right of choosing. Webster's Works, vol. 6, pp. 231-227. It will be noticed that Mr. Webster here refers to the government as being the State. It is not to be presumed, however, that he intended this in other than a narrow sense suited to the purposes of the argu- ment he was at the time making. The case involved the question which of two factions constituted the constitutional government of the State of Rhode Island. Webster was maintaining the authority of the charter government, which it was claimed had been regularly established 14 ELECTIONS. [chap. I. commuDity, whether State or Kational, in contradistinction to the Government or Legislature; that in the people, as thus defined, resides the ultimate power of sovereignty." ' James Winthrop, in his letter to the Massachusetts conven- tion, February 5, 1788, said ; " In the original state of gov- by the people and to which the people had delegated the powers of gov- ernment. Such a government, rather than any other, was the State, or, more accurately speaking, the duly accredited and authorized repre- sentative of the State. In addition to the idea of the State as synony- mous with the government, the word has sometimes been used as de- noting a territorial region, as where the Federal Constitution requires that a Representative in Congress shall be an inhabitant of the State in which he shall be chosen. In other parts of the Constitution the word " State " contains the combined idea of people, territory and govern- ment. Texas v. White, 7 Wall, 721. But in a primary sense the State is the civil community independent of the civil government. 1 Wil- son's Works, 271; Texas v. White, supra. The government is estab- lished by the State as a mere agency for the exercise of those powers that reside in the people. So that the authority of the State is original or inherent, while the authority of the government is delegated. Shars- wood's Blackstone, p. 49, note 12. A State is not the legislature of a State, nor the executive, nor the judiciary, but it is the people them- selves altogether forming a body politic. Pen hallow n Doane's Admin- istrators, 3 Dall., 93; State v. Young, 29 Minn., 536. Cicero defined a State to be a body political or society of men united together for the purpose of promoting their mutual safety and advantage by their com bined strength- Such a body or society when once organized as a State is not destroyed by any change or modification of its system of govern- ment, but has a wholly separate and independent existence. Keith v. Clark, 97 U. S., 454; 1 Wilson's Works, 271. So it has been held that the obligation of contracts and treaties of a State are in nowise im- paired by a change in the State's form of government, so long as the body politic remains the same. Keith v. Clark, supra; Texas v. White, supra; White v. Hart, 13 Wall., 646. Where the ownership of a terri- tory is transferred from one nation to another, the relations of the in- habitants of such territory with each other remain unchanged; and while there is a transfer of allegiance from one government to another and a consequent change in the political law of the territory, still that law which regulates the intercourse and general conduct of individ- uals remains in force until altered by the new authority. American Ins. Col v. Canter, 1 Pet., 540. See, also, Wilson's Works, Appendix, note A. 1 Luther v. Borden, 7 How. (U. S.), 19-27. CHAP. I.] EIGHT TO VOTE. 16 ernment the whole power resides in the whole body of the Nation, and, when a people appoints certain persons to gov- ern them, they delegate their whole power." ^ It was said by Elbridge Gerry that " ThQ origin of all power is in the people, and they have an incontestable right to check the creatures of their own creation." ^ Similar expressions are to be found in the writings and addresses of many other statesmen of the Revolutionary period.' § 14. It must be apparent from the foregoing that the people who declared their independence, and who adopted constitutions, were the individuals who made up the citizen- ship of the new States, irrespective of age or sex. These were " the governed," from whom the government derived its powers. These were "the people or members of the State." It would seem, therefore, that the people of the Constitution were the citizens of the State, male and female, old and young. This is made even more certain by the early decisions of the Supreme Court of the United States in cases where the question has been considered. § 15. In the great case of Chisholm, Executor^ v. The State of Georgia^ decided in 1793, Justice Wilson, one of the chief architects of our system of government, said : " The well-known address of Demosthenes, when he harangued and animated his assembled countrymen, was : ' O, men of Athens ! ' With the strictest propriety, therefore, clas- sical and political, our national scene opens with the most magnificent object which the Kation could present. ' The people of the United States ' are the first personages intro- duced. Who were those people? They were the citizens of the thirteen States." 1 Federalist (Fed. Statesmen Series), p. 553. * Federalist (Fed. Statesmen Series), p. 717. 3 John Quincy Adams' Eulogy on Monroe, Lives of Madison and Mon- roe, p. 236. See, also, Mr. Porter in N. Y. Convention (Deb. N. Y. Con., 1846, pp. 249-50); Storey's Com. on Const., sec. 215. «2Dall., 46a 16 ELECTIONS. [chap. I. In the opinion of Chief Justice Jay in the same case is to be found the following language : " It is remarkable that in establishing it [the Constitution] the people exercised their own rights and their own proper sovereignty, and, conscious of the plenitude of it, they declared with becom- ing dignity, *"We, the people of the United States, do ordain and establish this Constitution.' Here we see the people acting as sovereigns of the whole country, and in the lan- guage of sovereignty establishing a constitution. * * * At the Revolution the sovereignty devolved on the people ; and they are truly the sovereigns of the country ; but they are sovereigns without subjects, unless the African slaves among us may be so called, and have none to govern but themselves ; the citizens of America are equal as fellow-citi- zens, and as joint-tenants in the sovereignty." § 16. Again, in 1795, in the case of Penhallow v. Boane's Admiaiistrators^ it is said by Justice Iredell : " A distinc- tion was taken at the bar between a State and the people of the State. It is a distinction I am not capable of com- prehending. By a State forming a republic, speaking of it as a moral person, I do not mean the legislature of the State, the executive of the State, or the judiciary, but all the citizens which compose that State, and are, if I may so express myself, integral parts of it ; all together forming a body politic. The great distinction between monarchies and republics, at least our republics, in general is, that in the former the monarch is considered as the sovereign, and each individual of his nation as subject to him, though in some countries with many important special limitations ; this, I say, is generally the case, for it has not been so universally. But in a republic, all the citizens, as such, are equal, and no citizen can rightfully exercise any authority over another but in virtue of a power constitutionally given by the whole community, and such authority when exercised is, in effect, an act of the whole community which forms such body pol- i3DalL,93. CHAP. I.] EIGHT TO VOTE. 17 itic. In such governments, therefore, the sovereignty re- sides in the great body of the people ; but it resides in them not as so many distinct individuals, but in their politic ca- pacit}^ only." § 17. In Dred Scott v. Sanford^ decided in 1856, Judge Taney, in delivering the opinion of the Court, said : " The words ' people of the United States ' and ' citizens ' are syn- onymous terms, and mean the same thing. They both de- scribe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of these people, and a constituent member of this sovereignty." § 18. In the light of the foregoing it may be said with certainty that at the time of the Declaration of Independ- ence and of the formation of the Union the people were the citizens, irrespective of age or sex, and that the sov- ereignty in this country inhered originally in this broad class. It is next important to determine whether the sov- ereignty has been delegated or surrendered by the original people, and if so how, and to what extent, and to ascertain who are, in a political sense, the sovereign people in this country to-day. § 19. It being wholly impossible for the entire body of the people to participate in the exercise of sovereignty, they have constituted different agencies to represent and act for them in maintaining the government, the chief of which is the electoral body, or the voters, who act as the immediate representatives of the people in the daily affairs of government, and who choose from among themselves those who are to till those other agencies of the people, the legislative, executive and judicial departments of the gov- ernment.^ The body of the people never has and never 1 19 How., 373. 2 Jamison on Constitutional Conventions, § 24 2 18 ELECTIONS. [chap. I, can assemble. True, the constitutional convention is popu- larly regarded as an assembly of the people, and its pro- ceedings are considered as the utterances of the people, di- rect from the lips of sovereignty. Yet, in fact, a limited number of individuals either assume or are delegated to represent the people in such conventions, and a large ma- jority of the people never participate therein.^ How then do the constitutions adopted by such conventions become binding upon the people. This question may be properly considered here, in so far as it aids in a determination of the character of the right of suffrage as fixed by constitu- tional provision. § 20. It is upon the theory of affirmance or ratification of acts done in the name of the people that the provisions of constitutions, including the provisions prescribing the qualifications of voters, become binding upon the body pol- itic. The Declaration of Independence and the Constitution of the United States, and of the respective States, pur- port to be the acts of the whole people, done in their name, by their agents or representatives. The individual, there- fore, who continues to live without objection under the pro- visions of or changes in a constitution, niade by one claiming to act for him and in his name, is deemed as ratifying such provisions or changes, and as subscribing thereto, and by such ratification it becomes his as fully as though he had actually voted for its adoption. It was by the enforcement of this theory that the Constitution of the United States first became binding upon the inhabitants of the new States. All persons, whether natives or mere inhabitants, were con- sidered entitled to make their choice either to remain and become citizens of one or other of the States, or to remove from the country and continue British subjects. By remain- ing a certain length of time, fixed in some cases by statute, they were presumed to have elected to become American 11 Sharswood's Blackstone, 47, note 11; Blair v. Ridgely, 41 Mo., 161; Wilson's Works, voL 1, p. 14, and voL 2, Appendix, p. 570; Jamison on Const Con., sec. 237. CHAP. I.] EIGHT TO VOTE. 19 citizens.^ Thus, tlie Constitution, which before its adoption was a mere proposition, promulgated by a convention, be- came the instrument of the people, either by virtue of their votes, or by their acquiescence.- § 21. In the case of Inglis v. Trustees of Sailor's Snug Harbor^ it was said by Justice Story : " Under the peculiar circumstances of the Revolution, the general, I do not say the universal, principle adopted, was to consider all persons, whether natives or inhabitants, upon the occurrence of the Revolution, entitled to make their choice, either to remain subjects of the British crown or to become members of the United States. This choice was necessarily to be made within a reasonable time. In some cases that time was pointed out by express acts of the Legislature ; and the fact of abiding within the State after it assumed independence, or after some other specific period, was declared to be an election to become a citizen. That was the course in Mas- sachusetts, New Tork, New Jersey and Pennsylvania. In other States no special laws were passed, but each case was left to be decided upon its own circumstances, according to the voluntary acts and conduct of the party. That the gen- eral principle of such a right of electing to remain under the old or to contract a new allegiance was recognized is ap- parent from the cases of Commonwealth v. Chapma/n^ 1 Dall., 53 ; Caignet v. Pettit, 2 id., 234 ; Martin v. Commonwealth, 1 Mass., 347, 397; Palmer v. Downer, 2 id., 179, n.; S. C, Dane's Abridg,, c. 131, art. 7, sec. 4 ; Kilham v. Wa/rd, 2 Mass., 236, and Gardner v. Wa/rd, 2 id., 244, n., as explained and adopted in Inhabitants of Cummington v. Inhabitants of Springfield, 2 Pick., 394, and note; Inhabitants of Manchester V. Inhabitants of Boston, 16 Mass., 230, and M^Ilvaine v. Coxe^s Lessee, 4 Cranch, 209, 211. But what is more directly in point, it is expressly declared and acted upon by the Su- 1 Ware v. Hylton, 3 DalL, 232; Sharswood's Blackstone, p. 47, note 11. 2 Federalist (Federal Statesmen Series), No. 39, 212; Federalist (Fed- eral Statesmen Series), No. 40; Wilson's Works, voL 2, p. 571. 8 3 Pet, 160. 20 ELECTIOXS. [chap. I. preme Court of l^ew York, in the case oiJackson v. Wldte, 20 Johns., 313." § 22. In Ware v. Hylton} the powers of Congress, prior to the ratification of the Articles of Confederation, were upheld by the Supreme Court upon the ground of ratifica- tion. The Court say : " It has been inquired what powers Congress possessed from the first meeting in September, 1774, until the ratification of the Articles of Confederation on the 1st of March, 1781 ? It appears to me that the pow- ers of Congress during that whole period were derived from the people they represented, expressly given, through the medium of their State conventions or State Legislatures ; or that after they were exercised they were impliedly ratified by the acquiescence and obedience of the people. After the Confederacy was completed, the powers of Congress rested on the authority of the State Legislatures and the im- plied ratifications of the people." '^ § 23. It is to be concluded from the foregoing that the provisions of the Constitutions of the different States defin- ing who shall exercise the right to vote are binding upon all citizens, irrespective of age or sex. It remains to be ascer- tained whether the people, by establishing the qualifications of electors and delegating the right of suffrage to the per- sons possessed of the enumerated qualifications, have thereby surrendered irrevocably the sovereignty to the electors. Who are now the people? Do the inhabitants of the Com- monwealth stiU retain the sovereignty as at the beginning, or is it now vested in a new and restricted class — the voters ? § 24. It is here that we encounter some difference of opinion among the authorities, brought about, evidently, by the fact that in some cases the question has been viewed from a theoretical standpoint, while in others the practical phase of the matter alone has been considered. So far as the theory of suffrage is concerned, there is no reason to be- lieve that, by delegating the privilege to the voters, the peo- J 3 DalL, 233. ^McCullough V. Maryland, 4 Wheat., 404 CHAP. I.] EIGHT TO VOTE. 21 pie at large have done more than to create a trust of which they remain the beneficiaries. In many, if not in all, of the States, the Constitutions which create the voters contain in some form an expression of the sentiment that all govern- ment is founded on the consent of the people.^ Thus, in the Constitution of Pennsylvania, there is the declaration that the people have at all times an inalienable and inde- feasible right to alter, reform or abolish their govermnent in such manner as they may think proper, and " the people " here meant have been declared by the Supreme Court of Pennsylvania to be those who constitute the entire State, male and female citizens, infants and adults.^ If the people can abolish their government, they can also abolish the voters, who are but an agency of government. Had it been the intention to surrender the sovereignty into the hands of the voters, it is improbable *that a grant of such importance would have been left in any manner to implication. It is safe to say that in no State has any express grant been made by constitutional provision or otherwise. — § 25. Considering the question further, from a legal as well as a theoretical standpoint, there is abundant authority at hand to show that the voters have no power except as the delegates of the people, and that in exercising the fran- chise it has always been as the representatives of the entire citizenship. In the comparatively recent case of Wells v. Bain^ (decided in 1874), the Supreme Court of Pennsyl- vania, in discussing who are the people who possess the right to alter or reform the government, say : " The people here meant are the whole — those who constitute the entire State, male and female, infants and adults. A mere major- ity of these persons who are qualified as electors are not the people, though when authorized to do so they may repre- sent the whole people. * * * Three and a half or four 1 Story on the Constitution, ch. 9, § 581; Anderson v. Baker, 33 Md., 620. 2 Wells V. Bain, 75 Pa. St., 47. '75 Pa. St., 47. 22 ELECTIONS. [chap. I. millions of people cannot assemble themselves together in their primary capacity. They can act only through consti- tuted agencies. No one is entitled to represent them, unless he can show their warrant, how and when he was constituted their agent. The great error of the argument of those who claim to be the people or the delegates of the people is in the use of the y^ovH people. "Who are the people? Not so many as choose to assemble in a country or a city, or a dis- trict, of their own will, and to say, We are the people. "Who gave them power to represent all others who stay away ? Not even the press, that wide-spread and most pow- erful of all subordinate agencies, can speak for them by au- thority. The voice of the people can be heard only through an authorized form, for, as we have seen, without this au- thority a part cannot speak for the whole." § 26. In Anderson v. Baker^ the Supreme Court of Maryland had before it for consideration the test-oath pro- vision of the Constitution of Maryland, and the registry law of 1866 of that State, it being contended by the petitioner that these were null and void, by reason of the prohibitions of the Constitution of the United States. The Court in this case took occasion to investigate carefully where the sovereignty resides, and its conclusions, as expressed by Judge Cochran, are so clear and satisfactory as to entitle them to be incorporated here at some length. "The people in their original sovereign character," he says, " are the fountain-head of governmental authority, and all the powers necessary to be exercised in the continued administration of a representative government originate in and are delegated by an exertion of their sovereign will. These propositions, founded in necessity, and illustrated by long continued practice, have become the received doctrines of the American people. * * * The people, in clothing a citizen with the elective franchise for the purpose of se- curing a consistent and perpetual administration of the government they ordain, charge him with the performance » 23 Md.. 577-80. CHAP. I.] EIGHT TO VOTE. 23 of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed should be exercised, not exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the State. * * * The elective franchise, within the purview of this case, is a privilege conferred on the citizen by the sovereign power of the State to subserve a general public purpose, and not for private or individual advantage ; that, as against the power conferring it, the citizen acquires no indefeasible right to its continuance or enjoyment; and that the people of the State, in the exercise of their sovereign power, may qualify, suspend or entirely withdraw it from any citizen or class of them, providing always that repre- sentation of the people, the essential characteristic of a re- publican government, be not disregarded or abandoned." ^ § 27. Following this investigation of what we have called the theoretical side of the question, we come to a considera- tion of those authorities which hold that the sovereignty in this country, for all practical purposes at least, has been made over to and is now vested in the voters. The distin- guished jurist, David Dudley Field, in a paper read before the Congress of Jurisprudence and Law Reform in 1893, intimates that the people are the voters.^ A no less eminent authority, Judge Cooley, in his work on Constitutional Lim- itations,^ says : " The political maxim, that the government rests upon the consent of the governed, appears, therefore, 1 United States v. Cruikshank, 92 U. S., 542; Jamison on Const. Con., sec. 51 and sec. 332. 2 " What is meant by the people? At the time of the great dec- laration, the people meant adult white men. After the Civil War, and for some years, the people meant adult men, white or black. What is meant now? In the State of Wyoming, by the people is meant adult men and women, white or black. In that most advanced of all the States in this respect, a woman as well as a man votes for the repre- sentatives of the people." Extract from Address by David Dudley Field, as printed in Chicago Legal News, vol. 25, p. 438. 3 2 Cooley, Const. Lim. (6th ed.), p. 40. 24 ELECTIONS. [chap. I. to be practically subject to many exceptions. And when we say the sovereignty of the States is vested in the people, the question very naturally presents itself, What are we to understand by 'the people,' as used in this connection? "What should be the correct rule upon this subject it does not now fall within our pro\ance to consider. Upon this men will theorize, but the practical question precedes the formation of the Constitution, and is addressed to the peo- ple themselves. As a practical fact, the sovereignty is vested in those persons who are permitted by the Constitution of the State to exercise the elective franchise." § 28. In Blair v. Ridgely it is said : " Ordinarily it may be said, when we speak of the people, the entire body of the inhabitants of the State are comprehended. But this cannot be so in a political sense. It can only mean that portion of the inhabitants who are intrusted with political power. Neither in this nor any of the American States did the in- habitants, other than qualified voters, ever exercise political power, and it is only through the instrumentality of ballots that such power is or can be exercised. This truth is ex- hibited by the fact that, while the Constitution declared that all power resided in the people, less than one-fourth of the inhabitants exclusively exercised the political power, and more than three-fourths were always disfranchised." ^ § 29. It is to be observed that Judge Cooley states that the sovereignty is vested in the voters as a practical fact. It is fair to presume that he attaches to the word vested the mean- ing accorded to it in Colder v. Bull^ viz., possessed of the power to do certain acts or to possess certain things ac- 1 Blair v. Ridgely, 41 Mo., 161. The distinction attempted to be drawn here between the people in an ordinary or general sense as including the entire body of the inhabitants, and the people in a political sense as including only the inhabitants who are intrusted with political power, is, it is respectfully suggested, unsound. The term " The peo- ple " can have but one meaning, and an attempt to confound the people with the voters in any sense is to apply to the trustee a title which be- longs only to the ce&tuis que trust, 2 3DaU., 394 CHAP. I.] EIGHT TO VOTE. 26 cording to the law of the land, and not as possessed of an. inalienable and indefeasible right. Again, in saying that the sovereignty is vested in the voters as di practical fact, he expressly excludes from his discussion a theoretical con- sideration of the question. But with due respect for such eminent authority the writer believes that this view is in- correct, even from a practical standpoint, and that the body politic is sovereign not only in theory, but that it has power as an actual fact to assume and exercise at will the attri- butes of sovereignty. § 30. Sovereignty is exercised in two ways : first, regu- larly or indirectly through the agencies established by the sovereign power; and second, irregularly or directly by the people acting as a political unit without the intervention of agencies. It must be conceded that so long as the exercise of sovereignty is confined to the regular or indirect method, the exercise of sovereignty is practically in the hands of the voters. But its exhibition is by no means confined to this nielEod. Aside from the revolutionary exercise of power, which though unsanctioned by law is possible under all forms of government, and which, when exercised successfully, must be considered as the direct act of the aggregate people, there is an additional important method, in which the entire people exercise the sovereign power, viz., in the force of public opin- ion, which is wielded directly by the body politic, and which must be acknowledged as a potent and constant factor in the affairs of government. What can withstand the con- sensus of opinion of the entire people? The government and all its agencies, including the electors themselves, yield to it and conform to its demands. This is well illustrated by the remarks of David Dudley Field, already referred to, in which attention is called to the change which has taken place in the personnel of the voters since the establishment of the government. First, adult white males, then adult males, black and white, and now, in some instances, adult males and females, white and black. What has brought about this change ? Is it due primarily to the action of the 26 ELEonoNB. [chap. I. voters ? It must be admitted that, so far as the extension of the elective franchise to women is concerned, it has been brought about in obedience to a public sentiment, shaped to a great degree by the women themselves, who prior thereto formed the bulk of the disfranchised portion of the com- munity. If woman's suffrage becomes general in the United _ States, as now seems probable, and as is advocated and predicted by Mr. Field, it will be as the result of the opin- ions of the whole body of the citizens, and an example of the practical exercise of sovereignty by the community at large.^ May it not be said, therefore, as a practical fact that the wiU of the entire citizenship is still sovereign in the United States? § 31. It is unnecessary for the purposes of this work to determine whether the sovereignty in this country resides in the people of the United States as a Kation, or in the people as divided into groups by States. It is sufficient to note that so far as the right to fix the qualifications of voters is concerned, the sovereignty is in the people of the respective States, by virtue of the provisions of the Federal Constitution, subject only to the limitations contained in the Fifteenth Amendment, that the right of citizens of the United States to vote shall not be abridged on account of race, color or previous condition of servitude.^ § 32. It being within the power of the people to confer the right of suffrage, the qualifications of electors are de- termined by the representatives of the people in convention assembled, and are defined by the Constitution adopted or recommended in such conventions, and afterwards ratified by the voters.' § 33. It is within the power of the people by constitu- tional provision to limit the discretion of the voters in the choice of persons to fill public offices. The Constitutions of all the States define the qualifications of the persons to 1 Jamison on Const. Con., sees. 23 and 56. 2 See authorities cited in connection with section 1 of following chapter. » McCulloch V. State of Maryland, 4 Wheat., 404. OHAP. I.] KIGHT TO VOTE. 27 be chosen to the more important official positions, the usual requirements pertaining to nativity and age. When the qualifications of office-holders are thus prescribed, the voters are precluded from choosing any one to office who is not possessed of the enumerated qualifications.^ § 34r. The sovereign power having been delegated by the electors to the other agencies of government, the people can only withdraw, abridge or alter the power so delegated in the manner provided by their own Constitutions, and not in any manner nor at any time that may please a major- ity.* Nor can the people assume to exercise power which they have delegated. " If the entire population of a State could, as it is often expressed, * meet upon some vast plain,* so long as that population was organized under a Constitu- tion like those with which we are familiar, though it would be physically able to carry into execution such ordinances as should get themselves passed at its tumultuous parlia- ment, it clearly would have no constitutional or legal right to pass an ordinance at all. Such an assemblage would not constitute, in a political sense, the people. The people ^ of a State is the jpolitical tody — the corjporate unit — in j which are vested, as we have seen, the ultimate powers / of sovereignty; not its inhabitants or population consid;J^ ered as individuals. It is never to be forgotten that the individuals constituting a State have, as such, no political, but only civil rights. Except as an organized hody, that is, except when acting hy its recognised organs, the entire popu- lation of the State already constituted, were it assembled on some vast plain, could not constitutionally pass a law or try an offender." ^ 1 Jamison on Const. Con., 351. 2 Koehler u Hill, 60 Iowa, 543; In re Duncan, 139 U. S., 461 ; Van Horn's Lessee v. Dorrance, 2 DalL, 308; State v. Cunningham, 81 Wis., 497; Anderson v. Tyree (Utah), 42 Pac. Rep., 201. An election must be con- ducted by an authority constituted by law, and the mere fact that it is conducted honestly is not sufficient. Van Amringe u. Taylor,. 108 N. C, 196. * Jamison on Const. Con., sec. 237. 28 KLEOnONS. [OHAP. I, § 35. While the true theory of a representative govern- ment requires that the elective franchise should be extended to every citizen, who is competent and free to form an intel- ligent opinion upon questions affecting his own welfare as a member of the Commonwealth, the same principle requires that those who are not thus qualified, either from lack of education or intelligence, or because of dependence on the will of others, should be represented by deputies competent to act for them.^ A fair and adequate representation of the whole people by the electors is equivalent in point of useful- ness to universal suffrage, for it accomplishes all the purpose of the entire people as effectually as if each citizen were to cast his ballot ; nor does it do violence to any right of the people, for their rights are adequately and fully protected when in the hands of an intelligent body of voters impelled by self-interest to faithfully execute the trust reposed in them.* 1 The exclusion of lunatics, felons and idiots from the right to vote rests on obvious grounds. Infants are doubtless excluded because of a lack of intelligence and freedom, of will essential to a proper exercise of the right. The exclusion of women originated in the common-law idea of the merger of a married woman's existence in that of her hus- band, and in her unfitness by nature for the occupation of civil life. CJooley on Const. Lim., p. 38; Brad well v. State, 17 WaR, 140. «8 Wilson's Works, pp. 14r-16. CHAPTEK II. THE RIGHT TO VOTE — HOW PRESCRIBED AND REGULATED. § 36. Power of the States and of the United States to fix qualificationa 86. Power of the State limited by the Fifteenth Amendment to the Constitution of the United States. 37. State regulations followed by Federal government. 37. Except such as conflict with Federal Constitution or laws. 88. Qualifications of voters for Presidential electora 39. Nature and extent of power of Congress over suffrage. 40-41. Rights conferred by Fifteenth Amendment. 40-41. Power of Congress thereunder. 42. Decisions of United States Supreme Court. 43. Regulation of Federal elections; power of Congress, 48-44. Punishment of fraud in Federal elections. 45. Reg\ilation of Territorial elections. 46. Nature of right of suffrage and whence derived. 47. Legislature cannot add to or alter constitutional qualificationa 47. Change of election districts. 48-49, 51-52. Right to representation in government cannot be im- paired or taken away. 50. Voter may be questioned as to qualifications. 52-56. Validity of acts prescribing test oaths. 57. Act authorizing Governor to impair right of suffrage void. 58. Regulations must be reasonable. 58-62. Distinction between regulation and impairment of the right to vote. 62. Casting vote in case of tie. 63. Right may be limited to male citizens. 68. But may by constitutional provision, or sometimes by legislative act, be extended to females. 68. But only upon same terms and conditions as are applied to males. 63a. And cannot be extended by statute to females when construct- ively limited to males by constitutional provision. 64. Construction of Fourteenth Amendment to the Constitution of the United States. Ma. In what States women may vote. 64&. Constitution of New Jersey of 1776 permitting female suffrage. § 36. Subject to the limitation contained in the Fifteenth Amendment to the Constitution of the United States, the 30 ELECTIONS. [chap. H. power to fix the qualijfications 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 Section II of Article I of the Constitution, which provides as follows : "The House of Eepresentatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall ha/oe the qualifications requi/red for electors of the most numerous lyranch 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 Section I of Article II of the Constitution, which pro- vides that " each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Eepresentatives to which the State may be entitled in the Congress." Inasmuch as Representatives in Congress, and Presiden- tial electors, are the only Federal officers to be chosen by popular ballot, it is manifest that all controversies concern- ing 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 pro- vision of the Constitution of the United States, or with any constitutional act of Congress. § 37. As already intimated, the power of the State gov- ernment to prescribe the qualifications of voters is limited by the terms of the Fifteenth Amendment to the Constitu- tion 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 1 [Kinneen v. Wells, 144 Mass., 497; Minor v. Happersett, 21 Wall., 178; United States v. Reese, 92 U. S., 214; United States v. Cruikshank, 93 U. S., 542; United States v. Crosby, 1 Hughes, 448; Anthony v. Haider- man, 7 Kan., 50.] CHAP. II.] BIGHT TO VOTE HOW PKESCRIBED, ETC. 31 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 appropriate act of Congress oassed to enforce it or for the purpose of regulating the elec- tion of Federal oflBcials.^ Speaking of the clause of the Con- stitution first above quoted, the Supreme Court of the United otates has said : ^ " The States, in prescribing the qualifications of voters for the most numerous branch of their own Legislatures, do not do this with reference to the election for members of Congress. Nor can they prescribe the qualifications for voters for those eo nomine. They define who are to vote for the popular branch of their own Legislature, and the Con- stitution of the United States says the same persons shall vote for members of Congress in that State. It adopts the qualification thus furnished as the qualification of its own electors for members of Congress." § 38. With respect to the qualifications of voters for Presidential electors, it is proper to observe that the whole subject is committed to the States respectively by the pro- visions of Section I, Article II, of the Constitution, above quoted. Each State is to appoint electors in " such manner as the Legislature thereof may direct." This authorizes, of course, the Legislature to provide for the choosing of electors by popular vote (which is the usual mode) ; but it also au- thorizes the Legislature to provide for their appointment or election by the Legislature itself, or perhaps by the executive ; though this latter mode would be a wide departure from the practice of the States, and would remove the choice so far 1 For further discussion of power of Congress to i jgulate Federal elec- tions, see Chapter VI. "i Ex parte Yarbrough, 110 U. S., 66a 32 ELECTIONS. [chap. U, from the people that it is not to be expected that any State will adopt it. § 39. -Before proceeding to the consideration of the quali- fications of voters as prescribed by State laws, let us con- sider the nature and extent of the power of Congress over the subject. This order of discussion is most convenient be- cause, as already intimated, all power to legislate respecting the right of suffrage not expressly or by necessary implica- tion conferred by the Constitution upon Congress resides with the States; and therefore, when we have fixed the limits of the power of Congress, it may be assumed that all laws not falling within those limits are to be enacted by the States. It must, however, be borne in mind that we are for the present considering the question of the qualifications of voters simply, and that we are not, in this connection, to deal with the subject of the mode and manner of conduct- ing elections, or the prescribing of regulations to secure a fair and free expression of the popular will. This latter sub- ject will be considered in another connection,^ and it will be seen that Congress may prescribe such regulations applicable to what may be called Federal elections — that is to say, elec- tions for Representatives in Congress and electors for Presi- dent and Yice-President ; but such regulations cannot go to the extent of defining the qualifications of voters. They must relate to the time, place or manner of holding or con- ducting such elections. § 40. The Fifteenth Amendment to the Constitution does not confer the right of suffrage, but it does nevertheless confer upon citizens of the United States a very substantial right which Congress may protect and enforce by appropriate legislation, viz., the right of exemption from discrimination in the exercise of the elective franchise, on account of race, color, or previous condition of servitude. The power of Congress to legislate upon the subject of the qualifications of persons voting at State elections rests solely upon this iChapters viand VII. CHAP. II.] KIGHT TO VOTE HOW PKESCKIBED, ETC. 33 amendment. This, for the reason that Congress has power to legislate for the protection of such rights and immunities only as are created by or dependent upon the Constitution of the United States.^ In the case here cited it was held that the power of Con- gress in legislating for the enforcement of the Fifteenth Amendment is limited to the enactment of such statutes as are appropriate to prevent discrimination on account of race, color, or previous condition of servitude, and that those provisions of an act of Congress passed in pursuance of said amendment which are not confined in their operation to such discrimination are beyond the power of Congress, and there- fore unconstitutional and void. It was accordingly held that the third and fourth sections of the act of Congress of May 31, 1870,2 not being confined in their operation within the required limit, as above stated, Avere unauthorized and in- valid. Upon an examination and construction of these two sections the court reached the conclusion that their opera- tion was not intended to be confined to cases of unlawful discrimination on account of race, etc.; and it appearing that the statute, by its terms, was broad enough to cover offenses without as well as others within the power of Congress, the question arose whether it could be made available for the punishment of persons who may have been guilty of such acts of discrimination as Congress might have prohibited and punished. Upon full consideration, the Court held that the sections named could not be limited by judi- cial construction so as to make them operate only on that which is within the jurisdiction of Congress, and that there- fore they must be set aside as not " appropriate legislation " for the enforcement of the amendment. § 41. The statement in the opinion of the Supreme Court of the United States just referred to, that the Fifteenth Amendment conferred no aifirmative right to vote, was 1 United States v. Reese, 92 U. a, 214 2 10 Stat., 140. 8 34 ELECTIONS. [chap. H. qualified in the subsequent case of Tarbrough.^ It is there ^own that in all the States which did not remove from their Constitutions and laws the provisions limiting the right to vote to white men, this amendment did substantially confer upon colored citizens the right to vote, by annulling those discriminating provisions. The Court said : ^ " In such cases this fifteenth article of amendment does, propria vigore, substantially confer on the negro the right to vote, and Congress has the power to protect and enforce that right. In the case of United States v. Beese, so much relied on by counsel, this court said, in regard to the Fif- teenth Amendment, that 'it has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is an exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.' This new constitutional right was mainly de- signed for citizens of African descent. The principle, how- ever, that the protection of the exercise of this right is within the power of Congress is as necessary to the right of other citizens to vote as to the colored citizen, and to the right to vote in general as to the right to be protected against discrimination. The exercise of the right in both instances is guarantied by the Constitution, and should be kept free and pure by Congressional enactments whenever that is necessary." § 42. The question of the constitutional power of Con- gress to enact statutes regulating Federal elections, and par- ticularly as to the constitutionality of the aforesaid act of May 31, 1870,' has been considered by the Supreme Court of the United States, and wiU be further noticed hereafter.* In. this connection, however, it may be said that the decis- ions of the Supreme Court have settled the question of the 1 110 U. S., 651. 2 P. 665. » Ante, % 40. « Chapter VL CHAP. II.] EIGHT TO VOTE HOW PKE8CKIBED, ETC. 35 power of Congress under the Constitution, either to take into its own hands the entire matter of regulating elections for representatives in Congress and electors for President and Yice-President, or to supplement by way of amend- ment, alteration or addition, any regulation upon that sub- ject which the States may have enacted.^ Such regulations, however, when prescribed by Congress, do not interfere with the laws of the several States which prescribe the qualifications of voters, except in so far as they are founded upon the distinction of race, color or previous condition of servitude, or are of such a character as to interfere or con- flict with such lawful regulations as Congress may enact.^ § 43. In the case of United States v. Quinn^ Judge Wood- ruff, of the United States Circuit Court for the southern district of New York, had occasion to discuss the constitu- tionality of the twentieth 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 pre- vent a fair election of a member of that body. This is not an attempt to fix the qualifications of electors for Repre- sentatives 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 viola- tion of the State registry laws, to the sending of a Repre- sentative 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 Government of the United States could be obliged to look upon commission of frauds and 1 Ex parte Seibold, 100 U. S., 371; Ex parte Clark, Id., 899. 2 See oases last cited; also Ex parte Mcllwee, 3 Am. Law Times, 251; S. C, Bright. Elec Cas., 65; McKay v. Campbell, 2 Abb. U. S. Rep., 120. » Bright. Elec Cas., 592. 36 ELECTIONS. [chap. H. 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, on the effort to elect State officers simplv, 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 offi- cers. The power to punish such frauds against itself be- longs to the United States Government, and is nothing more nor less than the power of self-protection. § 44. The power of the Legislature is limited to prescrib- ing such regulations as do not substantially impair the con- stitutional privileges of citizens.^ In accordance with this doctrine it has been held by the House of Eepresentatives of the United States that where, just prior to the election, certain voting precincts were abol- ished, thus leaving large numbers of voters from twenty-five to thirty-five miles from the nearest polls, votes lost by this means could not be counted as if cast.' The correctness of this ruling is not doubted ; but it is believed to be equally clear that if the number of persons who are by such means deprived of the right to vote is so large that if cast they might have changed the result, the election ought to be set aside. Legislation of this character may be carried to the point or disfranchising large bodies of voters, and where such ap- pears to be the case it is the duty of the courts of justice to interfere. § 45. Congress has power to legislate for the Territories upon all subjects, including the right of suffrage therein ; 1 Monroe v. Collins, 17 Ohio St, 665. [A statute prohibiting election- eering in the vicinity of any polling place is a reasonable police regula- tion to secure good order about the polls, and does not infringe the constitutional rights of the citizen to express his sentiments on public- men and measures. State v. Black, 53 N. J., 463.J 2 Lawrence v. Sypher, 43d Congreaa, CHAP. II.] EIGHT TO VOTE HOW PKESCEIBED, ETC. 37 and, in the exercise of this power, may abridge the right of voting as by the act of Congress of March 22, 1882, prohib- iting bigamists, polygamists, etc., from voting.^ § 46. The right of suffrage is not a natural right, nor is it an absolute, unqualified personal right.^ It is a right de- rived in this country from constitutions and statutes. It is, as we have seen, regulated by the States, and their power to fix the qualifications of voters is limited only by the pro- visions of the Fifteenth Amendment to the Constitution, which forbids any distinction on account of "race, color, or previous condition of servitude," and by the general power of the Federal government to regulate its own elec- tions.' § 47. Where election districts are changed by legislative enactment, or other proper authority, questions of impor- tance sometimes arise as to the effect of such change upon the rights of the electors thereof. It is of course clear that when the boundaries of a district within which a voter has the right to vote are changed and such provision is made as to preserve his right of suffrage, the change will be held valid.* It has, however, been held that an act of the Legis- lature assuming to establish a second election district in an organized town, in the absence of a provision of law under which an election can be held in the new district, is uncon- stitutional and void.' The Constitution of Minnesota under which this case arose provided that the right of voting should be exercised in the election district in which the elector resided ; and it was accordingly held that an act which took him out of the district in which he had a right to vote, 1 Murphy v. Ramsey, 114 U. S,, 15. 2 [Bloomer v. Todd, 1 L. R. A., Ill, note. See, also, Ch. I, Sec. 4] 'Huber v. Riley, 53 Pa. St., 112: Ridley u Sherbrook, 3 Cold., 569; An- derson V. Baker, 23 Md., 531; Bright. Elec. Cas., 27. See, also, 1 Story, Const., Ch. 9, §§ 581, 582; Rison v. Farr, 24 Ark., 161; United States v. Reese, 92 U. S., 214; Ex parte Yarhrough, 110 Id., 651; Spencer r. Board, etc., 1 MacArthur, 169. * People V. Holihan, 29 Mich., 116; [Duncan v. Shenk, 109 Ind., 26.] s State V. Fitzgerald (Sup. Ct. Minn., 1887), 32 N. W. Rep. 78a 38 ELECTIONS. [chap. II. and placed him in another in which he had not such right, could not be upheld.^ § 48. The right to vote for and be represented by county and State oflBcers 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 organi- zation 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 ex- pected to remedy this difficulty by incorporating such ncAv county in a senatorial and judicial district does not cure the defect in such an act.' § 49. It is not competent for a State Legislature, in pro- viding 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 pro- visions concerning the qualifications of voters apply to all elections, whether general or special.* 1 See, also, Perkins v. Caraway, 59 Miss., 223. 2 [Pearson v. Supervisors, 91 Va., 322.] ' Lanning v. Carpenter, 20 N. Y., 447; People v. Maynard, 15 Mich., 463, 471; Cooley's Const. Lim., 616. * State V. Williams, 5 Wis., 308; State v. Lean, 9 Id., 279. A city ordi- nance which requires as a qualification for voting anything more than is required by the Constitution of the State is void. McMahon v. Savan- nah, 66 Ga., 217; S. C, 42 Am. Rep., 65. And the words "electors of said cities," used in the statute respecting elections of city, town and vil- lage officers, mean residents within the city, town or village who have the qualifications of electors prescribed by the Constitution, State v. Tuttle, 53 Wis., 45. But it has been held in Kentucky that where a town charter provided that town trustees shall be elected by the votes of voters who shall have paid their taxes, although the Kentucky Constitution contained no such provision concerning the qualifications of the voters generally, yet the town charter was valid, and only those who paid their taxes could vote for town trustees. The constitutional provision was held inapplicable to municipal elections. Bookner v. Gordon, 81 Ky., 665. [All persons who are within tlie class designated by the Constitu- tion are entitled to vote for all offices elective by the people, whether CHAP, II.J EIGHT TO VOTE HOAV PRESCRIBED, ETC. 39 § 50. It is, however, competent for the Legislature to pre- scribe 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 voter's right.^ § 51. In accordance with the principle that the Legisla- ture 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 stat- ute which undertakes to require a residence in the township of twenty days is unconstitutional and void.'^ A residence hona fide, for a time however short, satisfies the constitu- tional requirement, and it is fair to presume that it was in- tended that a person having all the other qualifications, and removing from one township to another at any time prior the offices to be filled are created by the Constitution or by Legislature. Consequently, a statute cannot confine the right to vote for road com- missioners to the freeholders of the district where the Constitution does not contain a property qualification, nor extend it to females or to non-residents of the district in the absence of a constitutional provision granting the right of suffrage to such persons. Allison v. Blake, 57 N. J., 6. The word " electors," as used in Section 1, Article 7, of the Constitu- tion of Colorado, is used in its restricted political sense, and means public electors for the choice of public officers. A statute requiring the question of the annexation of a town or city to be submitted to the determination of such electors as have in the year next preceding paid a property tax therein is not unconstitutional as imposing an addi- tional qualification for electors. Mayor of Town of Valverde v. Shat- tuck, 19 Colo., 104. The provisions of the Constitution of Florida, pre- scribing the qualifications of electors at all elections under it, do not apply to elections for municipal officers in that State, but such elections are subject to statutory regulation. State v. Dillon, 32 Fla., 545.] 1 State V. Lean, supra. [Where the Legislature has the right to pre- scribe the qualifications of voters at a municipal election, it may also provide the means of ascertaining the persons who possess the qualifi- cations prescribed. State v. Dillon, 33 Fla., 545.] 2Quinn v. State, 35 Ind., 486. 40 ELECTIONS. [chap. IL to the day of election, should retain 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. § 52. The Legislature of a State cannot add to the qualifi- cations of an elector, as prescribed by the State Constitution, and of course cannot deprive any citizen of any right con- ferred either by the State or Federal Constitution. Where the Constitution prescribes the qualifications, whoever pos- sesses 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 per- sons 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 in 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 Consti- tution had given the rights of electors, and that the act was therefore unconstitutional and void.'^ It has been held by the Supreme Court of Arkansas' that while a State law requiring that a voter shall swear to sup- port the Constitution of the United States does not restrict the right to vote or add to the qualifications required, yet 1 The General Assembly cannot in any way change the qualifications of voters in State, county, township, city or town elections. The qualifi- cations of voters, as fixed by the Constitution, are the same in all eleo tions. People v. Canaday, 73 N, C, 198. 2 McCafferty v. Guyer, 59 Pa. St., 109; S. C.. Bright. Elec, Cas., 44. [An act of the Legislature of Indiana, which makes the exercise of the right of suffrage by one who has been absent from the State six months or more, on business of the State or the United States, depend upon proof that he is a tax-payer of the county, is unconstitutional, as it requires a property qualification of this class of voters, in addition to the quali- fications prescribed by the Constitution. Morris v. Powell, 125 Ind,, 281.] 3 Rison V. Farr, 24 Ark., 161, and note to same case in 87 Am. Dec 64. CHAP. II.] EIGHT TO VOTE HOW PKESCEIBED, ETC. 41 to add to the qualifications prescribed by the Constitution a provision that the voter shall purge himself, by oath, of all crimes, or of any particular crime, is beyond the power of the Legislature. Upon this ground it was held that an act of the Legislature of Arkansas, approved May 31, 1864, prescribing as a qualification for voting an oath that the voter had not voluntarily borne arms against the United States, nor aided directly or indirectly the so-called Confed- erate authorities, was unconstitutional and void.* The same doctrine has been laid down by the Supreme Court of North Carolina.* It will be observed that these cases relate to the constitu- tionality of acts of State Legislatures which are supposed to affix conditions or impose burdens not permitted by the State Constitution. "Where the qualifications of voters are prescribed by constitutional provision, and the right is lim- ited to a particular class of persons, no distinction being made on account of race or color, it is well settled that no provision of the Federal Constitution is violated.' § 53. The Amended Constitution of Missouri required such an oath to be taken as a prerequisite to exercising the right to vote, as well as to the exercise of the duties of cer- tain callings in life, such as that of attorney at law, minister of the gospel, etc. In Cummings v. Missouri,^ the Supreme Court of the United States, by a bare majority of the judges, held this provision of the Constitution 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 1 But see Randolph v. Good, 3 W. Va., 551. 2 People V. Canaday, 73 N. C, 19a 3 Blair v. Ridgley, 41 Mo., 63. « 4 Wall, 277. 4:2 ELECTIOKS. [chap. II. t # of this test oath, as applied to voters, came before the Su- preme Court of Missouri in Blair v. Ridgley^ and that Court, in an elaborate and able opinion, held it valid. § 54. This decision was not in conflict with Cummingt V. Missouri, sup^ra. In the latter case the Supreme Court of the United States held that the right to adopt and follow the calling or vocation of a preacher, or minister of the gos- pel, 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 Cummin^s v. Missouri does not apply to the question of the validity of the test oath as applied to a voter. And it also follows that, inasmuclf as the right to vote is derived from and regulated by the State Constitution and laws, it is competent for the State in its Constitution, or by statute if its Constitution permits, to prescribe loyalty as a qualification, and to en- force the requirement by exacting of every voter an oath of loyalty. § 55. This question arose in the House of Representa- tives of the United States in Burch v. Van Horn^ and the decision of the committee, and of the House, was in accord- ance 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 coun- selor-at-law, nor after that time shall any person be com- petent 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 per- son shall have first taken, subscribed, and filed said oath.' uiMo., ea «2 Bart, 205. CHAP. II.] EIGHT TO VOTE HOW PEESCKIBED, ETC. 43 " Under this ninth section of the Constitution arose the case of Cummings v. Missouri^ 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 vocations lawful in themselves, in consequence of acts done prior to the adoption of the Constitution, could only have been intended as pun- ishment for such acts, and was therefore in essence and sub- stance an ex jpost facto law, and therefore forbidden by the Constitution of the United States. The contestant claims that the same application of principles requires the same de- cision 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 punish- ment for the act which stands in the way of taking the oath, and that the Constitution 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 14 Wall, 277. 44 ELECTIONS. [chap. H. grants it to all persons, but with such limitations as the in- terests of all and the interest of the State require. When >nce granted it is not a vested, irrevocable right, but it is aeld at the pleasure of the power that gave it, and the State ma\ , by a change of its fundamental law, restrict as well as enlargo it. When, therefore, the State of Missouri, in chang- mg 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, they exercised no greater or higher power than exists in every State." § 56. The object of prescribing an oath to be taken by an elector who is challenged at the polls, or before register- ing officers, is to test the right of such person to vote or register. It is doubtful whether a statute requiring a chal- lenged 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 appli- cant for registration, to the effect that he has not, since arriving at the age of eighteen years, voluntarily been en- gaged in rebellion against the government, is void, because the N'evada Constitution provides that persons who were engaged in the rebellion, and who were afterwards par- doned, may vote.^ § 57. 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 unconstitu- tional 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, subject to restrictions 1 Da vies v. McKerky, 5 Nev., 368. CHAr, II.] KIGHT TO VOTE HOW PEESCRIBED, ETO. 45 upon this power contained in the Constitution of the United States. But the right of suffrage once conferred by a Con- stitution, the Legislature has no power to divest it. It fol- lows 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 reg- ulating the exercise of the right, the Legislature cannot au- thorize the Governor, or any other official, to take the right away from him.^ § 58. Where the Constitution confers upon the electors the right to choose an officer, it is, as we 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 expression of that choice.2 Thus, in Pennsylvania the Constitution provided that vacancies in judicial offices, happening by death, resig- nation or otherwise, should be filed " 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 elec- tion 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 1 State V. Staten, 6 Cold., 233; Sheaf e v. Tillman, 2 Bart., 907. 2 [The Constitution of Tennessee does not require an educational qualification of voters. The provisions of the act of the Legislature of Tennessee (Acts of 1890, ch. 24), which makes it a misdemeanor for any- one to remove ballots from the voting place or to aid a voter in the selection or marking of his ticket, and which requires all voters, in- cluding illiterates, to select and mark their own tickets with such as- sistance only as the election officers may lawfully afford, are valid and constitutional. These provisions do not require such educational quali- fications on the part of voters as render them obnoxious to the State Constitution. They are the just and reasonable exercise of the legis- lative power to enact laws to secure the freedom of elections and the purity of the ballot-box. Nor do they impose oppressive or impossible conditions upon the exercise of the elective franchise. Cook v. State, 90 Tenn., 407.] 46 ELECTIONS. [chap. II. after the vacancy shall occur.'''' The question of the constitu- tionality of this act arose in Commonwealth v. Maxwell,^ 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 in- tended to take away or unriecessarily and unreascmahly post- pone and embarrass the right of election would be set aside as unconstitutional. But it was held that a provision requir- ing 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. § 59. The doctrine that the Legislature cannot add to the eonstitutional qualifications of voters is founded upon the well-settled rule of construction that when the Constitution specifies the circumstances under which a right may be ex- ercised, 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.'^ 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 neces- sary implication, conferred by the Constitution itself.' § 60. In Ohio it has been held that an act of the State Legislature authorizing the election of four members of a police board at each election, but denying to the elector the right to vote for more than two, was in violation of that provision of the Ohio Constitution which provides that each elector " shall be entitled to vote at aU elections." 1 27 Pa. St., 44. sCooley's Const Litn., 64; Rison v. Farr, 24 Ark, 161; [Allison v. Blake, 37 N. J., 6.] •Thomas v. Owens, 4 Md., 189. IHAP. n.] EIGHT TO VOTE HOW PKESCEIBED, ETC. 4:7 § 61. While the Legislature cannot add to, abridge or alter t-ti? constitutional qualifications of voters, it may, and should, prtscribe 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, time, manuer, etc. But such regulations are to be subordinated to the enjoyment of the right itself.^ It has been held under the authority of the rule in Mc- Cafferty v. 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 in the district removed from, is unconstitutional and void. This, for the reason that the Constitution of Pennsylvania requires that the voter should have resided in the election district " ten days immediately preceding the election."' As remarked by the Supreme Court of Alabama, no department of the government, nor all of them combined, have the power to divest an individual of his constitutional right to suffrage.* § 62. 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.' It is weU settled that a citizen by accepting an office may waive a constitutional privilege. The Constitution of each State 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 privi- lege, 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 iPage V. Allen, 58 Pa. St., 338, 347; Patterson v. Barlow, 60 Id., 54. 259 Pa. St.; S. C, Bright. Elea Cas., 44 'Thompson v. Ewing, 1 Brewst., 103. ♦State V. Adams, 2 Stew. (Ala.), 239. estate V. Adams, 2 Stew. (Ala.), 231; Bright. Elec. Cas., 286. » [The Supreme Court of Rhode Island has jurisdiction of a petition of mandamus to a town council to order an election as required by stat- ute. State V. Town Council of South Kingston, 18 R I., 258.] 48 ELECTIONS. [chap. II. secure the honors and emoluments of an ofnce, and the power to give the casting vote in case of a tie.^ § 63. It is competent for a State, in the exercise of its power to fix the qualifications of voters, to limit the right of suffrage to male citizens; and to do so is no violation of the Fourteenth Amendment to the Constitution of the United States, which provides that " no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." ^ It is equally within the power of the State, by constitu- tional provision, or by legislative enactment where the power of the Legislature is not restricted by the Constitution, to confer the right of suffrage upon women.' Where the law authorizes female suffrage it has been held that the right of women to vote must be extended upon the 1 In case of a tie no official can give a casting vote unless expressly authorieed to do so; and where in such cases no mode of determining the result is expressly prescribed, there will be no election. Olive v. O'Reily, Minor (Ala.), 410. 2 United States v. Anthony, 11 Blatchf., 200; Miner v. Happersett, 53 Mo., 58. [Women are not entitled to vote by virtue of the Fourteenth and Fifteenth Amendments to the Federal Constitution. Van Valken- burg V. Brown, 43 CaL, 43; Spencer v. Board of Registration, 1 Mac- Arthur, 169, 29 Am. Rep.. 582; Note to Bloomer v. Todd, 1 L. R A., Ill; Mudge V. Jones, 59 Mich., 165.] 3 Wheeler v. Brady, 15 Kan., 26; [Plummer v. Yost, 144 111., 68; Wood- ley V. Town Council of Clio, 44 S. C, 374; Ackerman v. Haenck, 147 111., 514, and Belles v. Burr, 76 Mich., 1. The organic act of Washington Territory provided that the qualifications of voters shall be prescribed by the Legislative Assembly, provided that the right of suffrage shall be exercised only by adult citizens of the United States (R. S., § 5506). By the act of the Legislative Assembly of the Territory, approved Jan- uary 18, 1888, the privilege of suffrage was conferred upon women. It was held by the Supreme Court of Wasliington, in Bloomer v. Todd, 1 L. R. A., Ill, that the latter act was void, as being in conflict with the portion of the organic act above quoted; the words " adult citizens," as used in the organic act, meaning adult male citizens only. Where a constitutional provision conferring the elective franchise upon women is submitted to the qualified voters of the State for ratification or re- jection, women are not entitled to vote upon such question of ratifica- tion or rejection. Anderson v. Tyree (Utah), 42 Pac. Rep., 201.] CHAP. II.] EIGHT TO VOTE HOW PEE SCRIBED, ETC. 49 same terms and conditions as are applied to men, and that therefore a provision that all male voters shall be tax-payers is void, the same provision not being applied to female voters.^ [§ 63a. Where the Constitution of a State provides for the election of a school officer, and also requires voters at " any election " to be males, and no intent appears to allow different qualifications for voters for such officer, it is beyond the power of the Legislature of the State to extend to women the right to vote for such officer.^] § 64. By the first clause of the Fourteenth Amendment of the Constitution of the United States, all persons born in the United States are citizens thereof, and therefore capable of becoming voters. The Constitution does not, by its own terms, confer the right to vote. It does not execute itself. Legislative action is necessary to authorize any particular class of persons to vote. It has accordingly been held that within the District of Columbia, the laws of Congress on this subject extend only to male citizens.' [§ 64a. Woman are allowed to vote in the States of Wy- oming, Utah and Colorado in all State, county and Federal elections. They may vote at elections of school officers, or on questions connected with schools, in the States of Indiana, Kansas, Kentucky, Massachusetts, Michigan, Min- nesota, Nebraska, ]S"ew Hampshire, New York, New Jer- sey, Oregon, Vermont, Washington and Wisconsin. In the State of Kansas women may vote, in aU cities having an inhabitance of more than five hundred, for the election of city or school officers, or for the purpose of authorizing the issuance of school bonds. In Arkansas and Mississippi they 1 Lyman v. Martin, 2 Utah, 136. As to the right of women to vote at school elections under the statute of Nebraska, see State v. Crosby, 15 Neb., 444. 2 [People V. English, 29 N. E. Rep., 678 (111.); In re Cancellation from Register List, 141 N. Y., 112; In re Inspectors of Election, 25 N. Y. Sup., 106a] 3 Spencer v. Board of Registration, 1 Mac Arthur, 169; [State v. Board of Elections of City of Columbus, 9 Ohio Cir. Ct. Rep., 134]. 4 50 ELECTIONS. [chap. H. may vote on the question of granting license for the sale of liquors.] [§ 645. It seems that under the Constitution of New Jer- sey, framed in 1776, women were entitled to vote. This Constitution provided that all inhabitants of a certain age and residence, and in possession of a certain amount of prop- erty, could vote. An act to regulate elections, passed in 1793, provides that " every voter shall deposit his or her bal- lot, which will be a simple written ticket, containing the names of the persons for whom he or she votes." This is probably the first law authorizing female suffrage in this country, and the provision was abolished in 1807.^] I pvf inor v. Happersett, 21 WalL, 177 (Note Ford's American Citizens' Manual, p. 90).] CHAPTER m. QUALIFICATIONS OF VOTERa § 65. Usual qualifications enumerated. 66. Meaning of word " inhabitants.'* 66-68. Citizenship. 69. Effect of Treaty with Mexico upon stattia of inhabitants of ao- quired territory. 70-83. Naturalization. 70. Power of Congress exclusive. 71. Summary of naturalization laws. 73-74. What courts may grant naturalization. 75. Proceedings in court required. 76. Judgment final 77-79. How fact of naturalization may be proved. 79a. Where no record of naturalization can be produced. 80-81. Who may be naturalized. 83. Residence required. 83. Also good moral character. 84-85. Construction of act of Congress of April li, 180^ as to rights of certain minors. 85a, Collective naturalization. 856. Status of child of alien parent who has filed declaration but neg- lected to perfect his naturalization. 86. Children born abroad whose parents are citizena § 65. 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. Eesidence 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. ^ [Registration acts, making unjust discrimination between the rights of native-born and naturalized citizens and electors, are unreasonable and void. Atty. Gen. v. City of Detroit, 78 Mich., 545.] 52 ELECTIONS. [chap. III. 4. In most of the States the right to vote is limited to males.^ 5. In some States the payment of taxes is made a quali- fication. 6. And in some States ownership of land. 7. Mental capacity. § 66. 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 unnaturalized 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 v. Houghton^ 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 Stew- oH v. Foster? % 67. In Harvard College v. Oore^ 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 in- habitants of or residents in the same county at the time of 1 [Where women are allowed to vote in all elections " pertaining to school matters," the mere fact that a city, county or State officer, as incident to his office, is required to do some act (as where a mayor appoints school commissioners), does not make the election of such an officer one in which females would be entitled to vote. Brown v. Phil- lips et al., 71 Wis., 239. Where, by legislative enactment, females are allowed to vote for special purposes, such right must not conflict with any constitutional provisions prescribing the qualifications of electors. In re Cancellation from Registry List, 141 N. Y., 113.] 2 3111. (2 Scam.), 377. 3 2Binn., 110. *5 Pick., 370. CHAP. III.] QUALIFICATIONS OF VOTERS. 53 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 dom- icile. It imports citizenship and municipal relations, whereas a man may have a domicile in a county to which he is alien, and where he has no political relations." * § 68. ISTot withstanding the conflict of authority above referred to, it seems very manifest that where the term " in- habitant " is used especially in describing the qualifications of voters, it does not mean the same thing as citizen. It must be conceded that while the two terms may to a cer- tain 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. § 69. By the terms of the treaty of peace of 1848 be- tween 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 cit- izens 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 sufBcient, 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,^ § 70. Inasmuch as naturalization is in nearly all the States necessary to qualify an alien to vote, it is proper in 1 And see Opinion of Judges, C\ishing's Elec. Cas., 120; Maiden's Case, Id., 377. 2 Otero V. Gallegos, 1 Bart, 177. 64: ELECTIONS. [CHAP. III. this connection to state briefly the general requirements of the law upon that subject. Congress has power " to estab- lish a uniform rule of naturalization." ^ And the power of Congress under this clause of the Constitution, whether originally exclusive or not, having been exercised by the en- actment of a general system of naturalization, has become so ; and it is clear that no State can now pass a naturaliza- tion law.^ § 71. The following is a summary of the naturalization laws: 1. The first step to be taken by an alien desiring natural- ization is the declaration, under oath, of his intention, hona fide, to become a citizen of the United States, and to re- nounce forever all allegiance and fidelity to any foreign power, potentate, state or sovereignty whatever, and par- ticularly, by 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 Dis- trict Court of the United States,' 2. Such declaration of intention must be made at least two years 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 author- ized to grant naturalization, and upon satisfying such court that he has complied with the law in these respects — that 1 Const, Art 1, Sec. 8. 2 Chirac v. Chirac, 2 Wheat, 259; United States v. Vallejo, 2 DalL, 372; License Cases, 5 How., 504, 585; Passenger Cases, 7 How., 518, 556. 8 [The certificate of declaration of intention to become a citizen is the only competent evidence of such fact Berry v. Hull (N. M.), 30 Pac. Rep., 936.] * [The declaration, if made before a clerk, need not be made in his oflSce. Andrews v. Judge Circuit Ct, 74 Mich., 278. Contra, In re Langtry, 31 Fed. Rep. 879.1 CHAP. III.] QUALIFICATIONS OF VOTERS. 55 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 common-law jurisdic- tion and a seal and clerk or prothonotary " may grant nat- uralization. 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. It 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 continu- ously, 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.- [10. Aliens of the age of twenty-one years or upward, who have enlisted in the United States navy or marine 1 [Where a widow and her minor son, both of foreign birth, came to the United States, and during the son's minority his mother married a citizen of the United States, such marriage made both mother and son citizens. Gumm v. Hubbard, 97 Mo., 312.] 2 See naturalization laws, Rev. Stat. U. S., p. 380; [Cowan v. Prowse, 93 Ky., 156]. 66 KLEcnoNS. [chap. in. corps, and have served five consecutive years in the United States navy or one enlistment in the United States marine corps and have been thereafter honorably discharged, may be naturalized without any previous declaration on proof of good moral character.^] 11. Aliens of African nativity or descent may become citizens by naturalization. ^ But Indians and Mongolians or Chinese are not entitled to naturalization.' § 72. Under the provisions of the Eevised Statutes of the United States,* naturalization may be allowed before " any court of any of the United States having common-law jurisdiction and a seal and a clerk." Under this section it has been held that it is not necessary that the court grant- ing naturalization should have full and complete common- law jurisdiction. It is enough if such court has power to exercise any part of common-law jurisdiction. And so it has been held that the City Court of Yonkers, New Tork^ can naturalize.' § 73. A court of record without any clerk or prothono- tary or other recording oflBcer distinct from the judge of such court, is not competent to receive an alien's preliminary declaration of his intention to become a citizen.' § 74:. A State law restricting the State courts and their clerks from receiving applications, or entertaiuing jurisdic- tion for the naturalization of aliens under the acts of Con- gress, is not contrary to the Constitution of the United States.' 1 [Sup. Rev. Stat, voL 2, p. 206.] «Rev. Stat, Sec. 2169. »i2e Ah Yup, 5 Sawy., 155; S. G, 6 Cent L. J., 387; Act of Congress, May 6, 1882, Chap. 126, Sec. 14, 22 Stat, 51; [In re Gee Hop (D. G), 71 Fed. Rep., 274. Indians may, however, become citizens by complying with the provisions of the act of February 8, 1887, Chapter 119, Section 6 (Sup. Rev. Stat, vol 1, p. 536).] « Sec. 2165. 5 United States v. Powers, 14 Blatchf., 223. See, also, upon this subject, Glandbill, Petitioner, 8 Met, 168; 2 Curt, 98; State v. Whittemore, 50 N. H., 245; Parsons v. Bedford, 3 Pet, 433, 446. 6 Butterworth's Case, 1 Woodb. & M., 823. And see Ex parte Cregg, 3 Curt, 98. ' [In re Gilroy, 88 Me., 199.] UHAP. in.] QUALIFIOATIONS OF VOTERS. 57 Congress can confer jurisdiction upon State courts to grant naturalization, but it cannot compel such courts to exercise 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 oflScial duty, or their oath to support the Constitution of the United States." 1 § 75. Application for naturalization must be made in open court, and evidence of residence, etc., 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 the judge in open court, are void, and confer no right of citizenship upon the holder.^ § 76. The courts having power to grant naturalization are the final and exclusive judges as to all questions arising in naturalization cases. They are to receive testimony, to compare it with the law, and to determine all questions both of law and fact. The judgment and order of such a court, duly entered on record in legal form, granting naturalization, closes all inquiry as to the testimony on which it has been pronounced, and, like every other judgment, is complete evidence of its own validity, and can be attacked only on the ground of fraud or want of jurisdiction.' § 77. A certificate of naturalization in due form, issued by a court possessing the jurisdiction to grant the same, is 'Case of Stephens, 4 Gray, 550; Morgan v. Dudley, 18 B. Men., 696; Eump V. Commonwealth, 6 Casey, 475. 2 People V. Sweetman, 3 Parker, C. R, 358; [Behrensmeyer v. Kreitz, 135 ni, 591.] »Spratt V. Spratt, 4 Pet., 393; The Acorn, 2 Abb. U. S., 434; People v. Welsh, 9 Abb. (N. Y.) N. Cas., 465; Preston v. Culbertson, 58 Cal., 198. [Where a certificate of naturalization is granted by a court of compe- tent jurisdiction, it cannot be impeached by proof that it was improp- erly granted, or was obtained by false or perjured testimony. Behrens- meyer V. Kreitz, 135 III, 591. It seems that the United States can sue in a Federal court for the cancellation of a certificate of naturalization which has been obtained by fraud in a State court. United States v. Norsch, 42 Fed. Rep., 417.] 58 ELECTIONS. [chap. III. jprima facie evidence of naturalization, and an election oflBcer 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 j?ro 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.^ Election oflScers cannot question the citizenship of one nat- uralized by a court of competent jurisdiction.^ § 78. In the absence of a statute requiring a naturalized citizen to produce his naturalization papers, and especially where it is alleged that such papers have been lost, his own oath may be received upon the question of his right to register, and such oath proves jprima facie the truth of the statements sworn to.* § 79. It is not necessary that the record of proceedings * Parol evidence to prove the fact of naturalization is inadmissible; the record or a certified copy miist be produced. State v. O'Hearne, 58 Vt, 718; 6 AtL Rep., 606. * Commonwealth r. Lee, 1 Brewst., 373; Commonwealth v, SheriflF, Id., 183; Commonwealth v. Leary, Id., 270. •People V. Walsh, 9 Abb. (N. Y.) N. Cas., 465; Preston v. Culbertson, 58 Cal., 198. < People V. McNally, 9 Abb. (N. Y.) N. Cas., 648; and see § 287. [It seems that where the clerk has neglected to record the order of nat- uralization, or where the court records are destroyed by fire, parol proof may be introduced to prove the fact of naturalization. Lowry V. White, Mob., p. 623. In case of loss or destruction of record of nat- uralization, the fact may be established by secondary evidence. Kreitz t?. Behrensmeyer, 125 111., 141. But in the case of Lowry v. White, supra, the question arose whether Mr. White was eligible to election under the provisions of Section 2, Article I, of the Constitution of the United States, requiring a Representative to have been a citizen of the United States for a period of seven years prior to his election. No record of his naturalization was offered before the committee, but he sought to prove such naturalization by parol evidence. This he was not permitted to do, the distinction being drawn between the admission of parol evi- dence to prove the contents of a court record and the proof of an order of court never recorded.] CHAP. III.] QUALIFICAIIONS OF V0TEE8. 59 for naturalization shall be entirely full and accurate in its statements and recitals. These constitute no part of the judgment. Thus, though the record may not state that the court heard evidence of the good character of the applicant, or of his attachment to the Constitution, the judgment will not be impaired by this omission. It will be presumed that the court was satisfied upon these questions by suiBcient evidence. Nor is it necessary that there should be a formal order of the court admitting the applicant to citizenship. The oath, when taken, confers the rights of a citizen.* [§ 79a. Where no record of naturalization can be pro- duced, evidence that a person having the requisite qualifica- tions to become a citizen did, in fact, for a long time vote and hold office and exercise the rights belonging to citizen- ship, is sufficient to warrant a jury in inferring that he has been duly naturalized as a citizen.^] § 80. Formerly the right of naturalization was limited to any alien being a free white person ; but by act of July 14, 1870,' the privilege was extended " to aliens of African na- tivity and to persons of African descent." Subsequently, by an act approved February 18, 1875,* the law was amended so as to " apply to aliens being free white persons and to aliens of African nativity," etc. ; and by an act approved May 6, 1882,' it was enacted that " hereafter no State court or court of the United States shall admit Chinese to citizen- ship." § 81. It has been earnestly contended that an Indian born a member of one of the Indian tribes within th*. United States which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe and taken up his reciaence among the white citizens of a State, but who has iiot been 1 Matter of Coleman, 15 Blatchf., 486; Re McCoppin, f bawy., 630; United States v. Reading, 18 How., 1. 2 [Boyd V. Thayer, 143 U. S., 135; Hogan v. Kurtz, 94 XT. ti., 773; Blight V. Rochester, 9 Wheat., 535.] » 16 Stat., 256, Sec. 7. * 18 Stat., 318. 6 Chap. 126, Sec. 14, 22 Stat., 51. 60 ELECTIONS. [chap. IH. naturalized or taxed, or recognized as a citizen either by the United States or by the State, is a citizen of the United States within the meaning of the first section of the Four- teenth Article of Amendments of the Constitution, which declares that " all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside." And it has also been earnestly contended that such Indians were entitled to vote under the Fifteenth Amendment of the Constitution, which provides that " the right of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude." But these propositions have not been sustained by the Supreme Court of the United States. According to the decision of that court in Elk v. Wilhins^ the members of Indian tribes are not to be re- garded as a part of the people of the United States, but as occupying an alien and dependent condition, and therefore not falling within the terms of general acts of Congress, unless so expressed as to clearly manifest an intention to include them. It was accordingly held that Indians born members of their tribes were not made citizens by the Fourteenth Article of Amendment above quoted.^ 1 113 U. S., 94. 2 [Since the above text was written, the right of such Indians to citi- zenship has been expressly conferred by United States statute. In the act of Congress dated February 8, 1887, entitled "An act to provide for the allotment of lands in severalty to Indians on the various reserva- tions, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes," it is enacted, *' That upon the completion of said allotments and the patent- ing of the lands to said allottees, each and every member of the respect- ive bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allot- ments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States v. ho has voluntarily taken up, within said limits, OHAP. III.] QUALIFICATIONS OF VOTEBS. 61 § 82. The five years' residence required by the law prior to naturalization must be a residence within the United States. It is not enough that the applicant has continued within the jurisdiction of the United States during that period ; and therefore a person who had followed the sea constantly, sometimes in the merchant and at other times in the United States service, but had had no residence in any part of the United States other than by employment on board of American vessels, had not been a resident within the meaning of the act.^ § 83. An applicant for naturalization must show that he has behaved as a man of good moral character during all his residence in this country. It has accordingly been held that evidence of his conviction for a crime committed since he came to this country to reside will bar his application, not- withstanding it occurred more than five years previous to the application.' § 84. Some difference of opinion has been expressed as to whether under the provisions of section 4 of the act of Congress of 14th of April, 1802,' the minor children of parents naturalized since the passage of that act are enti- tled to the rights of citizenship; in other words, whether that section, in so far as it conferred such rights upon the minor children of naturalized citizens, was prospective. That section, omitting such portions as are immaterial to this question, may be quoted as follows : " That the children of his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citi- zen of the United States, and is entitled to all the rights, privileges and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the terri- torial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property." In the case of State v. Norris, 37 Neb., 299, Indians were held to be qualified electors by virtue of the above statute.] 1 Anonymous, 4 N. Y. Leg. Obs., 98. 2 Matter of Spenser, 5 Sawy., 195; 18 Alb. Law Jour., 153; 6 Reporter, 293. »2 Stat, at L., 155; R S. U. S., § 2172. 62 ELECTIONS. [chap. IH. persons duly naturalized * * * being under the age of twenty-one (21) years at the time of their parents being so naturalized, or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States." » It has been supps)sed by some that this section applied only to such minor children as were dwelling within the United States at the time of the passage of the act.* And even Chancellor Kent regarded the question as doubtful.' The case of Campbeil v. Gordon^ decided in 1810, presented the question of the fdatus of a minor child of a person nat- uralized prior to the^ passage of the act, the minor not being a resident of the United States at the time of the naturaliza- tion, but having become a resident thereof prior to the pas- sage of the act. The Court said : " This act declares that the children of persons duly natu- ralized under any of the laws of the United States, being under the age of twenty-one (21) years at the time of their parents being so naturalized, shall, if dwelling in the United States, be considered as citizens of the United States. This la precisely the case of Mrs. Gordon. Her father was duly naturalized, at which time she was an infant ; but she came to the United States before the year 1802, and was at the time when this law passed dwelling within the United States." From what is here said. It has been argued that the words " if dwelling in the United States " qualify the whole sec- tion, and render the provision which declares that the natu- ralization of the parent shall confer the rights of citizenship upon his minor child, retrospective only. [The Supreme Court has, however, in Boyd v. Thayer^ settled all con- • [The naturalization of a father does not affect the citizenship of his minor son, who did not come to this country until after his father had been naturalized, Behrensmeyer v. Kreitz, 135 IlL, 591.] 2 Peck V. Young, 26 Wend., 613, 622; Vint v. Heirs of King (U. S. Dist. Ct West. Dist of Virginia, 1853), 2 Am. Law Reg. (0. S.), 712. » 3 Kent's Com., 53. <6Cranch, 176. »[148U. a, 135.] CHAP. III.] QUALIFIOATIONS OF VOTERS. 68 jecture on this question by holding that the act of April 14, 1802, should have a prospective operation, and that the nat- uralization of a parent after the passage of the act would confer the rights of citizenship upon his minor child dwell- ing in the United States at the time of such naturalization.] Other courts have [also], since the decision of Camjpbell v. Gordon^ held the act to be in this respect prospective.^ In the case last cited, the opinion was delivered by Mr. Justice Harlan. If the question were res nova, to be determined upon the terms employed in the statute, it would seem to be easy enough of solution. Congress was enacting a perma- nent system of naturalization, and it is, therefore, fair to presume that the provisions of the act were intended to be prospective, except as the contrary was plainly expressed. The provision in question is not by its terms plainly retro- spective only. On the contrary, it may very well be con- strued to be both retrospective and prospective. The lan- guage is : " The children of persons duly naturalized * * * being under the age of twenty-one (21) years at the time of their parents' being so naturalized * * * shall, if dwell- ing within the United States, be considered as citizens of the United States." This language is quite as applicable to the future as to the past. If the past alone had been intended. Congress would have said, " the children of persons hereto- fore duly naturalized," etc. ; and if the future alone had been intended, Congress would have said, " the children of persons hereafter duly naturalized," etc. ; but inasmuch as a perma- nent system was being established, designed to fix the status of persons then in being, as well as to provide for the natu- ralization of those who should come after them, the words were so chosen as to be both retrospective and prospective. This is made more evident by the terms employed in the latter clause of the same section, which declares that " the children of persons who now are or have heen citizens of the 1 West V. West, 8 Paige, 433; State v. Penny, 10 Ark., 621; O'Connor ?7. State, 9 Fla., 215; State v. Andriano, 92 Mo., 70; United States v. Kellar, 13 Fed. Rep., 82. 64 ELECTIONS. [chap. in. United States, shall, though born out of the limits and juris- diction of the United States, be considered as citizens of the United States." § 85. In the case of State v. Andriano, supra, the Su- preme Court of Missouri considered very fully the question of the force and effect of the decision of the Supreme Court of the United States in Camphell v. Gordon, and reached the conclusion, reversing the court below, that there is noth. ing in the opinion in the latter case to justify the claim that the Supreme Court intended to hold the fourth section of the act of 1802 to have been only temporary and retro- spective. [§ 85a. In addition to the method of naturalization pre- scribed by the naturalization laws already referred to, Con- gress may, in the exercise of its power to establish an uniform rule of naturalization, provide by treaty or statute for the col- lectiv© naturalization of the inhabitants of a district or ter- ritory.* Notable examples of the exercise of this power are found in the Jay treaty,^ conferring citizenship upon British subjects residing at Detroit,' the treaty of Paris extending citizenship to the inhabitants of the ceded terri- tory,* the treaty with Mexico of 1848,' by which Mexicans remaining in the ceded territory were to be deemed citizens of the United States, and the enabling acts under which the State governments of Ohio, Michigan, Indiana, Illinois and Nebraska were formed, where the rights of citizenship were conferred upon others than those who were prior thereto citizens of the United States.] [§ 855. The statutory provisions with reference to natu- ralization do not clearly define IYlq status of minor children of fathers who have declared their intention to become cit- 1 [Desbois Case, 2 Martin, 185; United States v. Laverty, 3 Martin, 733; Boyd V. Thayer, 143 U. S., 135.] 2 [8 Stat, at L., 116, 117.] • [Crane v. Reeder, 25 Mich., 303.] < [8 Stat at L., 200-202; Dred Scott v. Sanford, 19 How., 525.] » [9 Stat at L., 930.] CHAP, in.] QUALIFICATIONS OF VOTEES. 66 izens of the United States but who have failed to carry out the directions prescribed for perfecting their naturalization, nor do they suflSciently define the status of such children after arriving at full age by reason of such declaration of intention where the father neglects to perfect his natural- ization. It has, however, been recently held by the Supreme Court of the United States in Boyd v. Thayer ^^ that minors acquire an inchoate status by the declaration of intention by their parents, which entitles them, upon arriving at major- ity, to elect whether they will repudiate the status impressed upon them and accept allegiance to some foreign power or accept the citizenship which has been initiated for them by the parent. That while such election is usually made by application on their own behalf, this is not absolutely nec- essary, and that a long-continued exercise of the rights and performance of the duties of citizenship should be consid- ered as an equivalent of technical compliance with the rule. The facts in this case were: James E. Boyd was, in l^o- vember, 1888, elected Governor of the State of Nebraska, and in due time qualified and entered on the duties of his oiRce. In January, 1891, an information was filed in the Supreme Court of Nebraska to oust him from the ofiice for the reason that at the time of his election he was not a cit- izen of the United States, and was not therefore eligible to the oflQce of Governor. In March, 1891, the Supreme Court of Nebraska entered a judgment of ouster against Boyd, and the relator, Thayer, was put in possession of the office; whereupon the case was taken to the Supreme Court of the United States by writ of error. James E. Boyd was born in Ireland of Irish parents in 1834, and brought to this country in 1844 by his father, who settled in Ohio, and who, in 1849, declared his intention to become a citizen of the United States. In 1855 the son, who had been assured by his father that he had completed his naturalization by taking out his sec- i[i43U. a, 135, na] 6 66 ELECTIONS. [chap. in. ond papers in 1854, voted in Ohio as a citizen. In 1856 he removed to the Territory of Nebraska. Here he was elected County Clerk, entered the military service of the United States and served as a soldier ; was elected a member of the Nebraska Legislature ; served as a member of the State Con- stitutional Convention; was elected Mayor of the City of Omaha, and voted at every National, Territorial, State and Municipal election since 1856. For over thirty years he had actually enjoyed all the rights, privileges and immunities of a citizen. Upon these facts the Court held as follows : "We are of the opinion that James E. Boyd is entitled to claim that, if his father did not complete his naturaliza- tion before his son had attained majority, the son cannot be held to have lost the inchoate status he had acquired by the declaration of intention, and to have elected to become the subject of a foreign power, but, on the contrary, that the oaths he took and his action as a citizen entitled him to insist upon the benefit of his father's act, and placed him in the same category as his father would have occupied if he had emigrated to the Territory of Nebraska ; that, in short, he was within the intent and meaning, effect and operation of the acts of Congress in relation to citizens of the Terri- tory, and was made a citizen of the United States and of the State of Nebraska under the organic and enabling acts and the act of admission." ] § 86. Under the acts of Congress, children born abroad, not only of citizens by birth, but also of naturalized citizens, are citizens of the United States.^ I Las Portas v. De La Motta, 10 Rich, Eq. Rep., 88. [See article on " Citizenship by Naturalization in the United States," 24 Am. Law Rev., 61&] CHAPTER ly. QUALIFICATIONS OF YOTEES — Continued, S 37. Residence always required. 88. Residence defined. 89. Residence at United States Navy Yard, Arsenal, or the like. 90-91. Residence of soldiers. 93-93. Residence within Indian or military reservation. 94-95. Change of residence. 96-100. Temporary removal. 98. Residence and domicile synonymous. 101-103. Residents of students at college. 102-103. Importance of the question of intention. 104. Paupers abiding in a public almshouse. 104a. A prison not a place of residence. 105. The intention to remain at a particular places 106. Rules of evidence. 107. Payment of tax. 108-9-12-13. Mode of assessing tax. 110. Payment by agent. 111. Persons exempted from payment of taxes. 114. Definition of phrase "housekeepers and heads of families.* 115-116. Mental capacity required. 117. Rule in Kentucky as to deaf mutes. § 87. As residence in a particular place and for a definite period of time is required by the laws of all the States as a qualification for voting, it is important to note the adjudica- tions touching this qualification. § 88. In the case of Williams v. Whiting,'^ the question was as to when the plaintiff ceased to be a resident of Rox- bury, and became a resident of Dedham. On the 28th day of October, 1811, being then a resident of Roxbury, "he re- ceived," 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 1 11 Mass., 424. 68 ELECTIONS. [chap. IT. 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 ]!^ovember, on which day he re- moved his family and became domiciled in Dedham." And the court held upon these facts that he remained an inhab- itant of Koxbury until the day of his removal with his family. In the same case it is held that under the statute of Mas- sachusetts, 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 ofifers to vote, and that it made no difference that the person offering to vote had re- moved inside of a year from another town in the same Con- gressional 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.^ § 89. Where a State has ceded a given tract of land to the United States for a navy yard, arsenal 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 ac- quire any elective franchise as inhabitants of such State.^ 1 [As to what constitutes residence, see Langhammer et aL v. Munter, 80 Md., 518; Silvey v. Lindsay, 107 N. Y., 55; Blankenship v. Israel, 133 IlL, 514; Moffett v. Hill, 131 IlL, 239; Behrensmeyer v. Kjeitz, 133 IlL, 691; McLean v. Hobbs, 74 Md., 116; Berry v. Hull (N. M.), 30 Pac. Rep., 936; Warren v. Board of Registration, 72 Mich., 398; 2 L. R A., 203, and note; Merrill v. Whitemire, 110 N. C, 367; Tullos v. Lane, 45 La., 333; Kemp V. Owens, 76 Md., 235; State v. Dennison, 46 Kan., 359; Berry v. Wilcox, 44 Neb., 82.] 2 Opinion of Judges, 1 Met (Mass.), 580; Sinks n Reese, 19 Ohio St, 306; Commonwealth v. Clary, 8 Mass., 72. [Since the State of New York CHAP. lY.] QUALIFICATIONS OF VOTEKS. 69 But this rule does not apply to persons residing upon a tract of land in a Territory of the United States which has been reserved or set apart by the Executive for military purposes. It was so held in Burleigh v. Armstrong^ 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 Gov- ernment, 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 sub- ordination 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 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 do- main 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 has ceded to the United States the territory comprising the West Point reservation, reserving nothing except the right to serve process therein, such territory has ceased to be subject to State jurisdiction, or to be a part of the State; and persons having no other qualifications as resi- dents than a residence in such territory are not residents of the State and have no right to vote. In re Town of Highlands, 23 N. Y. Sup., 137.] I42d Congress [Smith, 89] . 70 ELECTIONS. [chap. IV. not in any just sense cease to be inhabitants or residents of the Territory within which such military reserve ma}^ 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." § 90. 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.^ And a stat- ute attempting to authorize soldiers to vote out of the State is unconstitutional.^ § 91. 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 re- main in the place where they have previously been quar- tered, 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.' § 92. 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 other- wise with persons residing within the limits of a military reservation. It was so held by the House of Representa- tives in the case of Burleigh and SpinJc v. Armstrong} § 93. The House of Representatives of the United States has frequently held that residents upon an Indian reserva- 1 People V. Riley, 15 Cal., 48; Hunt v. Richards, 4 Kan., 549; Biddle v. Wing, CI. & H., 504; Re Election Law, 9 PhiL, 497. 2 Day V. Jones, 31 Cal., 261; Twitchell v. Blodgett, 13 Mich., 137. •Biddle and Richard v. Wing, CL & H., 504, 5121 « 42d Congress [Smith, 89] . CHAP, rv.] QUALIFICATIONS OF VOTERS. 71 tion have no right to vote.^ In the latter case the House sustained this doctrine against the report of the Committee. These cases, however, were all from the Territory of Ne- braska, 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 ail 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 ex- tinguished." A similar provision will be found in the organic acts of most and probably of all the Territories. § 94. "We have already seen that a residence within a place over which the United States has exclusive jurisdic- tion 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 pre- scribed time within the State, county or township, as a quali- fication 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.^ § 95. Electors cannot be residents of one district and vote in another ; ' and it has therefore been held that a statute transferring voters from one district to another by a change of city boundaries is, in e£Pect, an alteration of the district, as much as it would be if the same result were brought about in a different way.* 1 Daily v. Estabrook, 1 Bart., 299; Morton v. Daily, lA, 402; Bennett V. Chapman, Id., 204. 2Renner v. Bennett, 21 Ohio St., 451; [Yonkins' Contested Election, 2 Pa. County Ct., 550]. 3 [State V. Alder, 87 Wis., 554.] * People V. Holihan, 29 Mich., 116. See Perkins v. Carraway, 59 Miss., 222. 72 ELECTIONS. [chap. TV. § 96. "Where a voter removed from the State of Illinois to another State with his family, with intent not to remain there unless suited, and returned because not satisfied to make his removal permanent, never having fully decided to change his residence, he was held not to have lost his right to vote in Illinois.^ 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.* § 97. Domicile 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.* "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.' The temporary absence of a person or his family from his usual place of residence, though extending over a series of years, does not necessarily, with- out regard to his intention, cause him to lose his residence 1 Beardstown v. Virginia, 81 IlL. 541. [The statutes of Maryland pro- vide that all persons who shall vacate or remove from the place of their actual abode within the State, and shall take up their abode out of the State, shall be conclusively presumed to have lost their residence in the State, unless at or within ten days after the time of their re- moval they shall make an aflBdavit before the clerk of the Circuit CJourt for the county from which they shall so remove that they do not intend to change their legal residence, but that they have a fixed and definite purpose to return to the State on or before six months pre- ceding the next election in November. (Acts of 1890, Ch. 513, Sec. 14) This statute construed in Bowling v. Turner, 78 Md., 595, and in Ster- ling V. Homer, 74 Md., 573.] ^McDaniel's Case, 3 Pa. L. J., 310; Thompson v. Ewing; 1 Brewst, 103; Infra, % 64. ' [Young V. Simpson (Colo)., 42 Pac. Rep., 666.J ♦State V. Frest, 4 Harr., 558; McDaniel's Case, 3 Pa. L. J., 810; Stur- geon V. Korte, 34 Ohio St, 625; Johnson v. People, 94 IlL, 505t » People V. Holden, 28 CaL, 124. CHAP. IV.] QUALIFICATIONS OF VOTERS. 73 or deprive him of his rights as an elector.^ Residence once acquired, by birth or habitancy, is not lost by a temporary absence for pleasure or business, or while attending to the duties of a public office, with an intention of returning.^ § 98. Residence, within the meaning of the Constitution of Pennsylvania, as applied to the qualification of an elector, means the same thing as domicile — the place where a man establishes his abode, makes the seat of his property, and exercises his civil and political rights.' 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 pleas- ure, unaccompanied with an intention to abandon the former citizenship, is not sufficient.* To constitute residence there must be an intention to remain ; but this intention is entirely consistent with a purpose to remove at some future indefinite time.' § 99. It was held by the Supreme Court of Massachusetts in 1814, that a person having a permanent home in one town 1 Harbaugh v. Cicott, 33 Mich., 241. 2 State V. Judge, etc., 13 Ala., 805; Lincoln v. Hapgood, 11 Mass., 850; Dennis v. State, 17 Fla., 389; Harbaugh v. Cicott, 33 Mich., 241; Beards- town V. Virginia, 81 111., 541; State v. Grizzard, 89 N. C, 115. 3 Chase v. Miller, 41 Pa. St., 404. See also Sturgeon v. Korte, 34 O. St., 625. 4 [Thompson v. Warner (Md.), 34 Atl. Rep., 830; Lower Oxford Con. Elec, 2 Pa. County Ct., 323. One in the employment of the United States mail service, whose established home is with his father, cannot, by reason of his boatding at a hotel in another township, vote there. Lankford v. Gebhart, 130 Mo., 621.] » Miller v. Thompson, 1 Bart., 118; Pigott's Case, Id., 463; State v. Aldrich, 14 R. L, 171. One who lives in a boat alongside a pier may ac- quire a residence for voting purposes. Re Collins, 64 How. Pr. (N. Y.), 63; [Pedigo v. Grimes, 113 Ind., 148. Residence does not mean one's permanent place of abode where he intends to live all of his days, or for an indefinite or unlimited time. Nor does it mean one's residence for a temporary purpose, with the intention of returning to his former residence when that purpose shall have been accomplished, but means one's actual home in the sense of having no other home, whether he intends to reside there permanently or for a definite or indefinite length of time. Shaeffer v. Gilbert, 73 Md., 66]. 74 RLECTIONS. [chap. IV, 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.^ 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 ob- serve 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 home, if he claims and exer- cises 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 domicile is a question largely of intention, and the fact of voting is very strong evidence of the voter's intention to claim a domicile at the place o^ voting. § 100. The Constitution of Pennsylvania requires, among other qualifications of a voter, that he shall have resided one year in the State, " and in the election district where he offers to vote, ten days immediately preceding such elec- tion." It was held in McJDanieVs Case ' 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 1 Lincoln u Hapgood, 11 Mass., 350. 2 [O'Hair v. Wilson, 124 111., 351; Carter v. Putnam, 141 lU., 133.] 33 Pa. I-. J., 310; S. C, Bright. Elec. Cas., 23a CHAP. IV.] QUALIFICATIONS OF VOTERS. 75 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 dis- trict 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 sometimes 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 deter- mining the right of such person to vote. That right ends in the place removed 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 re- siding there, until he has ceased to have a residence in the old.2 § 101. It will be found from an examination of the au- thorities, and from a full consideration of the subject, that the question whether or not a student at college is a hona fide 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 parents' control?* Does he regard the place where 1 Preston u Culbertson, 58 Cal., 198. 2 Thompson v. Ewing, 1 Brewst., 103; ante, §97. 8 Cessna v. Myers, Smith, 60; Putnam v. Johnson, 10 Mass., 488; Farlee v. Runk, 1 Bart, 87; Opinion of Judges, 5 Met., 587; Cushing's Elec. Cas., 436; [Schaflfer v. Gilbert, 73 Md., 66; Posey u Parrett, Row., 187; Hall v. Schoenecke, 128 Mo., 661]. * [Where a person of mature years severs his connection with the home of his parents, relying upon his own efforts and means, and with no fixed determination as to future residence, being otherwise qualified. 76 ELECTIONS. [chap. IV. the college is situated as his home, or has he a home else- where 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.^ A student residing at college, having no intention of re- maining permanently, has no residence there and no right to vote.' § 102. In accordance with the rule that residence is de- termined largely as a question of intention, it has been held that the undergraduates of a college who are free from par- ental control and regard the place where the college is situ- ated as their home, having no other to which to return in case of sickness or domestic affliction, are residents of the place where the college is situated and entitled to vote therein.* But the simple fact that such students paid a road tax in labor while in attendance at the college should have no weight in determining the question of residence, where the law under which such road labor was performed did not require residence to render the party liable, but simply in- habitancy.* § 103. Although it may be provided by statute or consti- tutional provision that residence of a student at a seminary of learning shall not entitle him to the right of suffrage at the place where such seminary is situated, yet he may gain a right to vote there if he Ixmafide intends to make that place his permanent abode independent of his sojourn as a student.* he is a legal voter wherever he may be attending college. Wortlington V. Post, Mob., 647.J iSee Dale v. Irwin, 78 111., 170; [Pedigo v. Grimes, 113 Ind., 148, and note to same case in 20 Am. & Eng. Corp. Cases, 43]. 2 Vanderpool v. O'Hanlon, 53 la., 246; S. C, 36 Am. Rep., 216; Sanders V. Getchell, 76 Me., 158; S. C, 49 Am. Rep., 606; [Goodman v. Bainton,84 Hun, 53; Campbell v. Morey, Mob., 215]. 5 [Berry v. Wilcox, 44 Neb., 82.] * Dale V. Irwin, 78 III, 170. •Sanders v. Getchell, 76 Me., 158; S. C, 49 Am. Rep., 606; [In re Ward, CHAP. IV.] QUALIFICATIONS OF VOTEKS. Y7 [§ 104. It has been held in a number of early contested elections in Congress that in the absence of statute regula- tions a pauper abiding in a public almshouse, locally situ- ated 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.^ But in the decision in the case of Cessna v. MyerSy supra, a different view was expressed, and in the later case of Le Moyne v. Farwell ^ all the cases in the House of Rep- resentatives are reviewed, and the rule is laid down that paupers at a poor-house do acquire there a residence Avithin the meaning of the election laws prescribing a residence as a requisite to suffrage.] [§ 104«. It has been held by the Court of Appeals of New York that a vagrant committed to prison on his own appli- 20 N. Y. Sup., 606; Stewart v. Kyser, 105 Cal., 459. A student's inten- tion to change his residence must be manifested by acts independent of his presence as a student in the new locality. Matter of Garvey, 147 N. Y., 117. A constitutional provision of this character is not retroact- ive, and an inmate of an almshouse who had gained a residence and voted in the district prior to the adoption of such a provision does not thereby lose his right to vote. In re Batterman, 14 Misc. Rep., 213.] iMonrce v. Jackson, 1 Bart., 98; Covode v. Foster, 2 Bart., 600; Tay- lor V. Reading, 2 Bart., 661; Dale v. Irwin, 78 IlL, 170; Be Election Law, 9 Phila., 497. A party does not forfeit his residence in a precinct in which he was a voter merely by becoming a county charge and an in- mate of the poor-house. Dale v. Irwin, 78 111., 170. 2[Le Moyne v. Farwell, Smith, 406; Stewart v. Kyser, 105 Cal., 459. Domicile in sailors' and soldiers' home is not residence. Silvey v. Lind- say, 107 N. Y., 55. The fact that a student, for the purpose of pursuing his studies, applies for and obtains aid in the nature of a loan from his college, in no way makes him an applicant for public aid. In re Ward, 20 N. Y. Sup., 606. Where a soldier, at the time of his admission as an inmate of the Michigan Soldiers' Home, has a legal residence in a town- ship other than that in which the home is situated, he does not lose such residence while he remains such inmate and is not a legal voter in the latter township. Wolcot v. Holcomb, 97 Mich., 361 ; People v. Hanna, 98 Mich., 517. The inmate of a county infirmary who has adopted the township in which the infirmary is situated as his place of residence, having no family elsewhere, is entitled to vote in the town- ship where the infirmary is situated- Sturgeon v. Korte, 34 Ohio St., 525.] 78 ELECTIONS. [chap. IV. cation and being maintained at public expense cannot gain a residence in the prison for the purpose of voting, although not strictly confined, but permitted to go in and out on er- rands.^] § 105. For a thorough discussion of the question of resi- dence, as applied to voters, see the report of the Committee of Elections in the House of Representatives of the Forty- second Congress, in the case of Cessna v. 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 " domicile " can be made suffi- ciently comprehensive to apply to all conceivable cases and circumstances. Tests which are satisfactory in some cases cannot be applied as inflexible rules in aU, Thus, it is a general rule that in order to gain a residence in a particular place a man must fix his domicile 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 ex- ample, 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 v. Myers; and let it be understood that the authori- ties cited in this chapter upon the general question of resi- dence are to be read with reference to the qualifications expressed in that report.* 1 [People V. Cady, 143 N. Y., 100.] *[And see, to the same effect, Kreitz v. Behrensmeyer, 125 IIL, 141.] OHAP. rV.] QUALIFICATIONS OF VOTERS. 79 § 106. 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.^ And in the same case it was held that upon a question of domicile, evi- dence of the conduct or declarations of a party, afterwards as well as before a given day, may be received to ascertain his intentions 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. § 107. 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 suflficient if it be a tax as- sessed either upon his person or his property within the time required.^ § 108. The Constitution of Massachusetts in force in 1837 vested the right to vote " in every male citizen other- wise 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 assess- ors of a town, and committed to the proper officer for collection, and before another tax is committed to the assess- 1 French n Lightly, 9 Ind., 478. 2Catlin V. Smith, 2 Serg. & R., 267; {In re Hughes, 3 Lack. Jur., 313; In re Contested Elec. of White, 4 Pa. Dist. Bep., 363; Maddendorf's Case, 4 Pa. Dist. Rep., 78]. 80 ELECTIONS. [chap. IV. ors 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.^ § 109. In some of the States it is provided by constitu- tional provision that, to entitle a man to vote, he must, as a prerequisite, 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 ir other respects a qualified voter, entitles him to vote, although" such tax was illegally assessed upon him.^ § 110. Though a tax which is assessed upon one person ii 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.' 1 Opinion of Judges, 18 Pick., 575. As to the payment of taxes as a qualification for voting, see, also, Re Voting Laws, 12 R I., 586; State V. Livingston, 1 Houst. Grim. C, Del., 109. [In drainage districts where the right of voting upon drainage questions is conferred upon " land owners," deeds of conveyance, while colorably giving title, not made, however, for the purpose of changing ownership in the land, but merely for the purpose of giving the grantees the apparent right to vote, and with an implied understanding that they should vote as desired by the grantors, do not make the holders of such deeds legal votera Murdock V. Weimer, 55 TIL App., 527.] 2 Humphrey v. Kingman, 4 Met., 162. ' Humphrey v. Kingman, supra; Draper v. Johnson, Clark & Hall, 702. Taxes required to be paid by the voter may be paid by his agent, and a subsequent ratification is equivalent to previous authority. Re District Attorney, 11 Phila., 645; Gillin v. Armstrong, 12 Phila,, 626. [An act of the Legislature of Florida which requires the voter to himself pay his poll-tax before participating in a city election does not deprive him of the privilege of paying the same by an agent. State v. Dillon, 32 Fla., 548.] CHAP. IV.] QUALIFICATIONS OF VOTERS. 81 § 111. In Massachusetts it has 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 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." ^ § 112. A provision of the Constitution of Yirginia gave the right to vote to those who, possessing certain other quali- fications, " shall have been assessed with a part of the reve- nue 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, 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.^ § 113. In Pennsylvania the general rule is that no person shall vote without having been assessed and having paid a tax. Persons not assessed are by the law of that State re- quired, in order to vote, to answer certain questions under oath as to tax, age, residence, etc., and in addition to prove their residence by the oath of a qualified voter of the divis- ion ; 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 Represent- atives that persons who were not assessed, and who voted without answering any of the questions required to be an- swered, and without producing the testimony of a qualified 1 Opinion of Judges, 5 Met., 591. See, also, 11 Pick., 538. 2 Draper «. Johnson, CL & H., 703. 6 83 ELECTIONS. [chap. IV. 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.^ 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 presump- tively 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 the benefit of the votes of such persons to show affirma- tively that they were qualified voters. § 114. Under a provision in the Constitution of Virginia giving the right to vote to those who for twelve months have been housekeepers and heads of families, it was held that un- married 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 " house- keepers and heads of families." Also, that in determining whether a person is a voter within the meaning of this pro- vision of the Constitution it is not proper to inquire whether he is legally married to the woman with whom he lives and keeps house.'^ § 115. The vote of an idiot or person non compos mentis 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.* 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.* When a vote is attacked on the ground that the voter who cast it 1 Myers v. Moffatt, 3 Bart, 564; Covode v. Foster, 3 Bart., 600. 2 Draper v. Johnson, CL & H., 702. » Thompson u Ewing, 1 Brewst, 68, 69. ♦Sinks V. Reese, 19 Ohio St., 307. CHAP. IV.] QUALIFICATIONS OF VOTEES. 83 was non compos mentis^ it is necessary to establish satisfacto- rily, 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,^ § 116. The better opinion seems to be that idiots and lunatics are by the common political law of England and this country disqualified from voting.^ But these unfor- tunate persons are expressly excluded from the right to vote by the Constitutions of Delaware, Iowa, Kansas, Maryland, Minnesota, Nevada, New Jersey, Ohio, Oregon, Khode Island, West Virginia, Wisconsin, and perhaps by other States. Paupers are excluded in New York, California, Louisiana, Maine, Massachusetts, New Hampshire, New Jersey, Ehode Island, South Carolina and West Yirginia. 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.' § 117. The Constitution of Kentucky provided that votes "shall be personally and publicly given viva voce." In 1 Clark V. Robinson, 88 111., 498; [Smith v. Jackson, Row., 9]. 2Cooley's Const. Lim., 599. * [In Pennsylvania and Massachusetts the voter must have paid within two years a State or county tax, and the payment of some tax is re- quired in Rhode Island, Delaware, Tennessee and Georgia, The Con- stitutions of Alabama, Arkansas, California and Mississippi expressly forbid a property tax, and the Constitutions of Alabama and Missis- sippi forbid an educational test, Belgium has an electoral law con- ferring the right of suffrage on those who contribute a certain amount to the revenue, to every man who has taken honors at a high school or college, or any one who can pass a prescribed examination with credit, and to foremen of workshops and factories. The experiment is con- fined to provincial and communal elections. Code Electoral Beige, 289; Main's Popular Government, p. 110.] 84 ELECTIONS. [chap. IV. Letch&r V. Moore} it appeared that three persons had voted for Mr. Letcher, who, 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 Ken- tucky, in the case of WilUa/m v. Mason (not reported), was overruled. No doubt is entertained as to the correctness of the ruling of the committee. »CL&H.,748L CHAPTER Y. DISQUALIFICATIONS OF VOTERS. § 118. Disfranchisement as a punishment for crime not cruel or tm* usuaL 119-121. Infamous crimes, 119, 120. Dueling. 119, 120. Sending or accepting a challenge to fight a dueL 120. Effect of sentence of fine under act authorizing fine, or impris- onment in the penitentiary. 120. Conflicting decisions. 121. Discussion as to meaning of " infamous crime." 121. Decisions of United States Supreme Court. 122. Desertion from military service. 122. Effect of act of Congress of March 3, 1865. 123. Judgment of a court of competent jurisdiction after trial neces- sary. 124 The question is judicial and must be decided by the courts. 124. Record of conviction must be produced before election officers. 125. Effect of pardon. § 118. 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 infa- mous offenses.^ § 119. 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 freeholders, and yet it is necessary (in New Tork) to the qualification of a Senator or a Governor that he should 1 Barker v. People, 20 Johns., 457. 86 ELECTIONS. [chap. V. be a freeholder, and with respect to the Governor he must be a native citizen of the United States, thirty years of age, and a resident vrithin the State for five years. The right of suffrage is therefore distinct from the right of being eligible to an office." 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 emolu- ment, civil or military, under this State," is constitutional ; and a conviction and judgment of disqualification under it are legal and valid. In the same connection, however, the court discuss the question whether the Legislature is not re- strained 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. The court was of the opinion that in- famous crimes are treason, felony and every species of the crimen falsi, such as perjury, conspiracy and barratry. Sending or accepting a challenge to fight a duel was not, therefore, in the opinion of the court, 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.* § 120. Under a constitutional provision declaring that an elector shall forfeit his privilege by " a conviction of any crime which is punishable by imprisonment in the peniten- tiary," it has been held that the conviction of a defendant, under a plea of guilty, of a crime punishable by a fine, or imprisonment in the jail or penitentiary, and where in fact the punishment was simply by fine, deprived the party con- victed of the right to vote. Under such a constitutional provision it was held that the privileges of an elector are forfeited by the conviction of any i^n tent authority. 188. Power of Military Governor. 189, 190. Effect of change in Congressional district. 191. Validity of act of June 25, 1842. 191, 192. Power of Congress to require election by districta. 193. Application of registry law to special elections. 194, 195. " General election," meaning of phrase considered. 196. Mode of conducting special elections. 197. What questions may be submitted to popular vote. 198-200. Local-option laws. 201. Return of votes after time prescribed. 116 ELECTIONS. [chap. VIL § 202. Invalidity of partial return. 20S-205. Effect of irregular transmittal of returns. 206-208. Plurality generally suflBcient to elect. 208. Meaning of " a majority of the voters of a county." 209. And of " the qualified voters therein." 210. 211. Deciding tie vote by lot. 212. Minority representation and cumulative voting. 218, 214. Statutes forbidding use of money to influence electiona 215-217. Bribery. 218, 219. Wager upon result of election. 220. Contracts tending to corrupt elections. 222-225. Effect of irregularities. 226. Numbering ballots. 227-229. What statutes are mandatory, 227-229. And what directory. 230-233. Depositing ballot in wrong box. 234 Voting by mistake in wrong precinct. 235. Adoption of erroneous rule by oflScers of election affecting class of voters. 236-239. Voter not generally prejudiced by errors or mistakes of elec- tion oflBcers. 240. Unconstitutional police regulations. 241. Effect of violence towards election officers. 242. Effect of reckless disregard of essential requirements. 243. Illustrations of rule that mere irregularities will not vitiate an election. 244. Holding of elections in territory acquired from foreign govern- ment. 245. Holding an election in a Territory in anticipation of admission into the Union. 246. Formation of State Government out of part of organized Ter- ritory. 247. Effect upon remainder. § 147. In the case of MoKune v. Welter^ it was laid down that an election cannot take place without statutory regula- tion. 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 regu- late the conduct of an election, or there can be none.' illCal, 49. 2 \Ex parte Kennedy, 23 Tex. App., 77. Where an act of the Legisla- ture, authorizing the holding of an election, did not take effect until the lapse of sixty days after its passage, an election held under the act, but before the expiration of the sixty days, was held void. Santa Cruz CHAP, VII. J REGULATIONS. 117 This case was followed in Peojple v. Martin} See, also, Sawyer v. Haydon^ and State v. Collins,^ where it is held that there is no inherent right in the people to hold an election. A volunteer election held without authority of law is void.* § 148. 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 mem- bers 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. Under this rule, where there were twenty-nine votes cast in the joint convention for David L. Tulee, and twenty-nine blank, it was held that there was no election.' § 149. 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 de- clared 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 touch- ing the election, returns and qualifications of its members. On the 19th of January, 1833, Mr. Eobbins was elected a Senator from Khode Island, for the term of six years from March 4, 1834. His credentials were in due form. In Oc- tober, 1833, the General Assembly of Rhode Island under- took to set aside this election, and to elect Mr. Potter Sena- tor, 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 ^to^qv prima facie Water Co. v, Blron, 74 Cal., 222. Where the Legislature has the right to prescribe the qualification of voters at a municipal election, it may also provide the means of ascertaining the persons who possess the qualifications prescribed. State v. Dillon, 33 Fla., 545.] 1 12 Cal., 409. 21Nev., 75. »3Id., 851. ♦State V. Robinson, 1 Kan., 17; State v. Jenkins, 43 Mo., 261. » Yulee V. Mallory, 1 Bart, 608. 118 ELECTIONS. [chap. VII. 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. Bob- bins was ultimately confirmed in his seat.^ Where, how- ever, 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.^ § 150. 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 partici- pated 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.' § 151. By an act of Congress approved July 25, 1866,* 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 Section 4, Article 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 repre- sent the State in Congress, and a person chosen as Senator by any other Legislature can have no right to the seat." § 152. It is not necessary under the act of Congress of July 25, 1866, to regulate the time and manner of holding elections for Senators in Congress, that the election by the » Potter V. Bobbins, CL & H., 877. * Spencer's Case, 43d Congress [Smith, 473], 'Case of Harlan, 1 Bart., 621; Case of Bright and Fitch, Id., 629, < 14 Stat, at Large, 243. • Norwood's Case, Senate Report, No. 10, 42d CongresSi CHAP. VII.] EEGULATIOXS. 119 Legislature should actually take place on the " second Tues- day 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 Sena- tor.^ 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 re- fusing to go into a joint convention for that purpose. § 153. It is, of course, essential to the validity of an election that it be held at the time, and in the place, pro- vided 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. The constitutionality of these statutes generally turned upon the question whether it was competent for a State Leg- islature to authorize a citizen to vote elsewhere than at the place of his residence. In the 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 Legisla- ture 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 Bald- 1 Case of Abijah Gilbert, 41st Cong. 2 [Sawyer v. State, 45 Ohio St., 343. It is essential to the validity of an election that it be held at the time and in the place provided by law. "When the time and place are not fixed by law but are fixed by some authority named in the statute, it is essential to the validity of the election that the time and place be fixed by the very agency designated by law and none other. Snowball v. People, 147 111., 260; Stephens v. People, 89 IlL, 337. Upon the question of the time and place of holding elections, see article in 24 Cent. Law Journal, 487.] 120 ELECTIONS. [chap. VTT. win V. Trowbridge^ 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 be- tween 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 paramount. This was held as the necessary effect of Article 1, Section 4, of the Con- stitution of the United States, which provides as follows: " 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 alter such regulations, except as to the places of choosing Senators." ^ § 154. 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 authorit}'^ from the Constitution of the United States, and not from the Constitution of Mich- igan. 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 convention which framed the State Constitution undertook to determine the place where all such elections should be held. This was an at- tempt to take from the Legislature the power plainly con- ferred by the Federal Constitution. In so far, therefore, as the constitutional convention undertook to fix the " place " for 13 Bart, 46. 2 [The Legislature may make reasonable changes by amendments to existing laws in respect to the time for holding the election of officers. Such change will not be deemed unreasonable, nor the act making it unconstitutional, unless so great as to raise the presumption of a de- sign substantially to deprive the office of its elective character. Jordan V. Bailey, 37 Minn., 174] CHAP. VII.] EEGULATI0N8. 121 " holding elections for Representatives," it went beyond its authority, because it was not " the Legislature of the State." § 155. A very similar question arose in Shiel v. Thayer} 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 v. Trowbridge^ ^ in this, that the former was not, like the latter, a case of con- flict between the State Constitution and any act of the State Legislature. It is true that the committee, in their report, expressed 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. The case does decide that where a State is admitted into the Union with a Constitu- tion which fixes a time for holding the election for Repre- sentatives 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. § 156. But the reasoning in Baldwin v. Trmabridgey whether sound or not, applies, of course, only to elections for Representatives in Congress, since it was within the prov- ince 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 pro- vide that he may vote elsewhere ; and that a soldier has no residence in the field or camp is also a clear proposition.'* 1 1 Bart., 349. 2 Chase v. Miller, 41 Pa. St., 403; Bourland v. Hildreth, 36 CaL, 161; Opinion of Judges, SO Conn., 591; Opinion of Jiistices, 44 N. H., 633; Twitchell v. Blodgett, 13 Mich., 127; Day v. Jones, 31 CaL, 261. 122 ELECTIONS. [chap. VII 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.^ § 157. In the Constitutions of some of the States we find provisions not only fixing the qualifications of voters, but also fixing the place of voting. Where 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.'^ So that the question must turn upon the language employed in the particular Constitution to be construed, § 158. The removal of the place of voting a short dis- tance from that fixed by law, but to a place near by so that no one was misled, is not fatal to the election.' In Chad- wick V. Melmn,^ 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 desig- nated school-house to a vacant house more than half a mile distant therefrom, without authority or any absolutely con- trolling 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, accord- ing to the election laws, as is the time of voting. The hold- ing 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 neces- 1 Morrison u Springer, 15 la., 304 See, also, Lehman v. McBride, 15 Ohio St., 573; Chandler v. Main, 16 Wis., 39a 2 Morrison v. Springer, supra. 8 Preston v. Culbertson, 58 CaL, 198; Simons v. People, 119 IlL, 617; [Ex parte Segars, 32 Tex. Grim. Rep., 533; Smith u Jackson, Row., 9], « Brightly 's Elec Gas., 251; a G., 68 Pa. St, 484. CHAP. VII.] IlEGtJLATIONS. 12d sity — neoessitas non habet legem. But then the necessity must be absolute, discarding all mere ideas of convenience." ^ The same rule prevails where the place of holding the elec- tion is fixed by the 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. § 159. In Illinois it has been held that the removal of the place of holding an election not more than one hundred feet from the building designated as the proper place did not viti- ate the poll, it appearing that all the voters knew where the poll was opened, as it was readily seen from the lawful place, and made manifest by the crowd going and returning there- from, Ko fraud or improper motive was shown to produce the change, nor did any voter complain that he was deprived thereby of an opportunity to vote.^ § 160, A statute of the State of IS^ew York provided that the citizens of the several towns qualified to vote are required annually to assemble and hold town meetings in their respect- ive towns, at such place in each town as the electors thereof in their town meeting shall from time to tvme 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 North field, at their annual town meet- ing 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 1 Journal of House of Representatives of Pennsylvania, 1856, 204, See, also. Beck v. McGhee; Miller v. English, 1 Zab. (N, J,), 317; Common- wealth V. Commissioners, 5 Rawle, 75; Marshall v. Kerns, 2 Swan, 68; Foster v. ScarfE, 15 Ohio St., 532; [Walker v. Sanford, 78 Ga., 165. When it is provided that county commissioners must construct a temporary room to be used as a polling place, if there is no room of adequate size at the place which the voters of the district have designated for the election, the commissioners are not at liberty to rent a room at any other place within the district. In re Egly, 158 Pa. St., 65]. 2 Dale V. Irwin, 78 IlL, 170. 124 ELECTIONS. [chap. VII. annual meeting was held. On the proper day, in 1848, the electors assembled at that place and organized, when a mo- tion 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 ac- cordingly held at 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.^ Page, J., in de- livering the opinion in this case, says: "I confess that I have had some diflBculty in coming to this conclusion, and I think that the power of adjourning a town meeting to an- other time and place may, under 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 re- ferred to, the Supreme Court of New York 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.^ In both these cases, how- ever, 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 poUs, or holding an election, in case of necessity, iThe People v. Martin, 5 N. Y., 1 Seld., 22. •GoodeU V. Baker, 8 Cow., 288. CHAP. VTI.] EEGULATIONS. 125 such as might arise from the destruction of the building designated for that purpose; hut, aside from cases of this kind, adjournments or changes are not as a general rule permitted. § 161. 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 deposit his ballot; but if that time or place be changed without proper authority and due notice, no voter can be held as legall}'^ 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, pro- vided the place was within the voting precinct. As to the time of the 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 suflQcient to change the result, or to render it doubtful, are thereby de- prived of the privilege of voting, the election must be set aside. A few minutes' delay in opening the polls will make no difference, but several hours' delay may render the elec- tion void, and certainly will have that effect if the party complaining of it can show that he has been injured thereby.^ § 162. In NeiJocuTn v. Kirtley^ 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 iMelvin's Case, 68 Pa. St, 833; Juker v. Commonwealth, 20 Pa. St, 484; Dickey v, Hurlburt, 5 CaL, 343; People v. Murray, 15 CaL, 321; Knowles v. Yeates, 31 CaL, 83. 2 13 B. Monroe, 515b 126 ELECTIONS. [chap. vn. 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 dififer- ent 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 intrusted by law with the office of receiving and recording them," and very properly, as that was a controlling fact. The true rule upon this subject has been stated in another connection ^ and is this : In order that a ballot not actually cast shall be counted as if cast, it must appear that the voter actually offered to cast it, and was pre- vented 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 prevent^ 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. § 163. 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 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.* 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 fraudu- lent, and operates to deprive legal voters of their rights, or unless the statute in express terms makes the hour of open- » Sec 187. » People V. Cook, 8 N. Y., 67; [Soper v. Board Ca (Jom'rs, 4« Minn., 274J. CHAP. VII.] EBGULATI0N8. 137 ing and closing the polls of the essence of the election. See Cleland v. Porter} The better opinion seems to be, however that a consider- able deviation from the hours fixed by law for keeping open the polls must render the election void. Thus, in Pennsyl- vania, 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.^ So also if they be opened at a much later hour than the time prescribed by law.' And it was at one time held in Ohio that if the poUs were closed for any purpose within the hours fixed by law for holding the election, it would render it illegal and void.* But this doctrine was overruled in Fry v. Booih^ 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. § 164. "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.' In Illinois it has been held, under similar circumstances, that it must be shown af- firmatively that votes were received after the proper hour which did change the result.' § 165. 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 en- forced. 1 74 111., 76. 2Penn. Dist Election, 2 Pars., 526; S. C, 68 Pa. St., 88. ' Chadwlck v. Melvin, Bright. Elec. Caa, 251. ♦State V. Ritt, 7 Am. Law Reg., 88. 5 19 Ohio St., 25. « Locust Ward Election, 4 Penn. Law Journal, 341. 7 Piatt V. People, 29 III, 54. 128 ELECTIONS. [chap. VII. 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.^ § 166. A statute of Yirginia 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," etc. Under this provision it was contended that the polls might be ad- journed from day to day for three days, and that the first day is to be excluded in computing the three days. But it 1 [Yeates v. Martin, 1 Ella, 52.] 2 [Where the Constitution of Kentucky provided, " all elections by the people shall be held between 6 o'clock in the morning and 7 o'clock in tlft evening," one was held elected who had received the most votes at 7 P. M., though the polling place was kept open until 10, and when closed the other party had the majority. Varney v. Justice, 86 Ky., 896. But where the notice of the election published by the clerk of a school district notified the electors that the polls would be open until 7 P. M. instead of 8 P. M., as the statute required, the clerk, being himself a candidate for re-election, cannot take advantage of his own error and urge the illegality of the election. State v. Smith, 4 Wash. St, 661. Even though the result may not have been affected, yet, if a radical change is made in the hours, the election is void. Hutchinson v. Wood- ruff, 57 N. J. L., 530.] CHAP. VII.] EEGULATIONS. 129 was held otherwise, the committee being of the opinion that the election could not be kept open for any purpose more than three days. Yotes cast on t\iQ fourth day after an ad- journment from the third were accordingly excluded.* § 167. 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 result.^ It has been held that if the majority expressly dissent, and do not vote, the election of the minority is good.' § 168. Yotes 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. In the case of an election by a board of county commission- ers, of a county treasurer, it was held in Commonwealth v. Head, sujpra, 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 mi- nority 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 principle of Commor\r wealth V. Read can be applied. Accordingly in State v. Binder * 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 con- cluded by the result. 1 Draper v. Johnson, CI. & H., 703. •^ First Parish, etc. v. Stearns, 21 Pick, 148; Trustees, etc v. Gibbs, 3 Gush. 39; [Patterson v. Belford, 1 Ells., 52; Biddle v. Wing, CL & H. C07J. 3 Oldknow V. Wainwright, 1 "Wm. BL, 229. And see Commonwealth r. Read, 2 Ashmead, 261; a C, Bright Eleo. Cas., 126. * 38 Mo., 45a 9 130 BLLECTIONS. [CHAP. VH. § 169. 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 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 Southern 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.^ § 170. 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. Elec- tions 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.' § 171. A statute of Kansas regulating the conduct of an election held for the purpose of determining the location of a county seat provided that the voters might assemble at 9 o'clock A. M. of the day of election, in each precinct, and * [Where legal voters are present at the polling place, but are unable to reach the window and actually tender their ballots on account of fraudulent challenges unduly prolonged by the connivance of the judges, their votes should be counted upon a contest So far as Con- gressional elections are concerned, the offer of a voter otherwise legally qualified to perform any act necessary as a prerequisite to voting will be considered as performance of the act. Waddill v. Wise, Row., 203, and cases there cited.] « Case of Upton, 1 Bart., 368; Case of Beach, 1 Bart, 391 ; Case of Segar, 1 Bart, 414; Case of Segar, 1 Bart, 426; Case of Segar, 1 Bart., 577; Case of Cloud & Wing, 1 Bart, 455; Case of McKenzie, 1 Bart, 460; Case of GraflBin, ISart, 464; Case of McKenzie v. Kitchen, 1 Bart, 468; Case of Chandler, 1 Bart., 520. •Flanders v. Hahn, 1 Bart, 438; Case of Clements, Id., 366. CHAP. VII.] KEGULATIO:>IS. 131 select from among themselves their judges and two clerks of election, who, after being duly qualified, should conduct the election. Under this statute it was decided by the Supreme Court of Kansas that a meeting held with closed doors by the adherents of one of the towns to be voted for, and from which meeting all the adherents of the other town to be voted for were excluded, was fraudulent and its proceedings void. And an election held by the people who were excluded from said meeting, conducted by the officers freely chosen in a fair and public manner, was held valid.^ § 172. The fact that ballots are received and deposited in the ballot-box in an irregular manner will not cause their rejection, if it appears that they were cast in good faith by legal voters.^ Thus, in Kentucky a case arose where two persons who were qualified voters appeared at the polls be- fore the judges had been sworn, and while one of the judges was absent. The two voters cast their votes and they were deposited in the ballot-box by the judge who was present, with the understanding that when the absent judge arrived and all had been sworn they would ratify the act. This the two judges and the clerk afterwards did, and it was held that the votes were valid and were properly counted.' § 173. 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 tick- ets at one and the same time, and having once voted for State officers, and been recorded as voting, he cannot after- wards come forward and claim the right to vote for Eepre- sentative in Congress.* § 174. A statute providing that two ballot-boxes shall be kept at each poll, one for the reception of ballots for E-epre- 1 State V. Harwood, 88 Kan., 588; 13 Pac Rep., 212. 2 [Lankford v. Gebhart, 130 Mo., 621, The fact that election officers place a ballot in the wrong ballot-box by mistake will not vitiate the ballot nor authorize its rejection. Parvin v. Wimberg, 130 Ind., 561 ; People V. Bates, 11 Mich., 362; Same Case with note, 83 Am. Dec., 745.] » Anderson v. Winfree, 85 Ky., 597; 4 S. W. Rep., 351. ♦ Draper v. Johnson, CI. & H., 711. 132 ELECTIONS. [chap. VII. sentative in Congress, and the other for the reception of bal- lots for State officers, was held to be directory only, in the case of Boyden v. Shober^ in which case the report of the committee has this language : " It is said that the law of North Carolina, rightly con- strued, 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 ]^orth Carolina, but assuming that the con- struction 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 baUots should go into one box or two should be allowed to defeat the will of the ma- jority." 2 § 175. 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 hy-loAJOs of a corporation, providing for voting by proxy, could be upheld. Upon this general subject see authorities cited below.' § 1Y6. 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 12 Bart, 904 « [Young V. Deraing, 9 Utah, 204] 'State V. Tudor, 5 Day, 329; Taylor v. Griswold, 2 Green (N. J.), 223; Angell & Ames on Corp., Ch. 4 57; Brown v. Commonwealth, Bright Elec. Gas., 282; Phillips n Wickham, 1 Paige, 590. See, also, Ch. XX OHAP. VII.] REGULATIONS. 133 may be directory only.^ It does not, however, follow that formal notice of the time and place of holding an election is always essential to its validity. "Whether it is so or not de- pends upon the question whether the want of formal 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 pub- lic notice that it Avould take place.' § 177. In the case of Foster v. Scarff^ it was held that where notice was not given, 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 oflBce 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, J., says : " In de- ciding 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 jper 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 min- isterial officer by his malfeasance to prevent a legal election. We have no doubt that where an election is held in other re- spects 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 proclamation which the law prescribes, such election will 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 1 Dickey v. Hulburt, 5 CaL, 343. » [City of Lafayette v. State, 69 Ind., 218; Ex parte White, Z'i Tex. Crim. Rep., 594; Smith v. Crutcher, 92 Ky., 586; Berry v. McCixllough, 94 Ky., 247; Wheat v. Smith, 50 Ark., 266.] » State V. Jones, 19 Ind., 356. See, also. People v. Cowles, 13 N. Y., 850; People V. Brenham, 3 CaL, 477; People v. Hart well, 13 Mich., 508L < 15 Ohio St., 532. 131 ELECTIONS. [chap. VII. misled for want of the official proclamation, its absence be- comes 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 elec- tion 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." ^ § 178. While it is true that notice is essential to the valid- ity 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 pub. lishing 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 v. Smiths 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 1 [At an election held in the defendant village the official ballots con. tained no reference to the office of police justice, although an election to fill such office was to be had at that time in accordance with the statute and resolution of the board of trustees; nor was such office named in the notice of election, no nomination having been made there- for. Notwithstanding this, forty-four votes were cast for the relator by pasters upon the official ballots. Held, that relator's election was valid and he was entitled to the office. People v. Village of Wappinger Falls, 83 Hun, 130.] 2 [People V. Avery, 106 Mich., 572.] 8 An election will not be set aside because the law requiring the giving of notice thereof has not been strictly followed, if such notice was given as that the great body of the electors were in fact informed of the time, place and purpose of the election. Commonwealth v. Smith, 133 Mass., 289; [Welsh v. Wetzel, 29 W. Va., 63; Seymour v. City of Tacoma, 6 Wash., 427; Woodward v. Fruitable Sanitary Dist., 99 CaL, 554; In re Mitchell, 81 Hun, 401; State v. Carroll, 17 R L, 591; Williams v. Shoudy, 12 Wash., 362]. < 10 Iowa, 212. CHAP. VII.] EEGULATIONS. 135 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." § 1Y9. It is doubtless perfectly true that where the elec- tion 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 appear that due notice has not been given, and that a portion of the electors have been thereby de- prived 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 elec- tion is clearly void.^ § 180. 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 de- rived from the law, and not from the notice.^ And this rule will 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." * § 181. The doctrine that want of formal notice of an elec- tion will not render the election void unless it appear that 1 [Where a posted notice states in one place that the election will be held in the school-house of the town, and states in another place that it will be held at the town hall, an election held in pursuance thereof is void. People v. Caruthers School Dist., 103 Cal., 184] 2 [Strobach v. Herbert, 2 Ells., 5; State v. Lansing, 46 Neb., 514] 3 [Patterson v. Belford, 1 Ells., 52.] * Cooley, Const Lim., (503. 136 ELEC110N8. [chap. VH. 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 Eepresentatives of the United States in Lyon V. Smith} 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; 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 elec- tion.^ § 182. It is, of course, more important and essential that due and regular notice be given of an election to fill a va- cancy than that such notice be given of the regular elec- tion provided by law, for the obvious 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 iCL&H., 101. *The following additional cases maybe consulted on the general subject of notice and as to when it is essential to the validity of an election: Matthews v. Board, 34 Kan., 606; People v. Crissey, 91 N. Y., 616, 634; Jones v. Gridley, 20 Kan., 584; Morgan v. Board, 24 Kan., 71 Cooley's Const. Lim., 758; State v. Skirving, 19 Neb., 497; S. C, 27 N. W, Rep., 723; People v. "Wetherell, 14 Mich., 48; Secord v. Foutch, 44 Mich. 89; People v. Canvassers, 11 Mich,, 111; State v. McKinney, 25 Wis., 416 Bolton V. Good, 41 N. J. Law, 296; Barry v. Lauck, 5 Cold. (Tenn.), 588 Westbrook v. Rosborough, 14 Cal, 180; Kenfield v. Irwin, 52 Cal., 164 People V. Thompson, 67 Cal., 627; Morgan v. Gloucester, 44 N. J. L. 137; Stephens v. People, 89 III, 337; Marshall Co. v. Cook, 38 III, 44 Force v. Batavia, 61 111., 99; Hubbard v. Williamstown, 61 Wis., 397 Pratt V. S wanton, 15 Vt, 147; Hadoux v. County of Clarke, 79 Va., 677. ' [If an election is held to fill a vacancy for the oflSce of a justice of the peace in a city of the second class, at any other election than at the regular city election for the election of justices of the peace, and no official proclamation or public notice is given of the election to fill the vacancy, and less than one-third of the electors of the city vote for a person to fill the vacancy, held, that the omission to give any official or public notice of the election to fill the vacancy, and the failure of the electors to participate generally in the election, vitiates the same, and the person claiming the office of justice of the peace under such an election is not entitled to it. Cook v. Mock, 40 E!an., 472.] CHAP. VII.] BEQULATIONS. 137 notice provided by law. In Peojple v, Cowles^ 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. § 183. 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 * * * by election for the residue of the unex- pired 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 construc- tion 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. § 184. 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.^ But in Indiana it has been held that an election to fiU a vacancy cannot be held where such vacancy did not occur long enough before the election to enable the proper notice to be given.' And the same point has been repeatedly ruled in California.* 113N. Y., 359. 2 People V. Hartwell, 12 Mich., 508. And see State v. Orris, 20 Wis., 235; State v. Goetz, 22 Id., 363; State v. Jones, 19 Ind., 218. SBeal u Ray, 17 Ind., 554. < People u Porter, 6 CaL, 26; People v. Weller, 11 Id., 49; People v. Martin, 12 Id., 409; People v. Roseborough, 29 Id., 415. 138 ELECTIONS. [chap. VII. § 185. In the case of MeKune v. Weller^ 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 elec- tion is discussed at length. The authorities upon the sub- ject 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 elect- ors may, and indeed must, take notice of them, and as to such elections 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 Gov- ernor to issue his proclamation of election to fill vacancies which occur not in the ordinary way by the expiration of the term, but by death or resignation before the term ex- pires, is mandatory and an essential prerequisite to all such elections. § 186. It was held by the House of Eepresentatives of the United States, after an exhaustive discussion, that where the Legislature of a State has failed to provide the time^ place and manner of holding an election to fill a vacancy oc- curring 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 elec- tion.' The power given to the Governor by the second sec- tion of the first article of the Constitution of the United States to issue writs of election to fill vacancies carries with it the power to fix the times and places of holding such elec- tion in cases where such times and places are not fixed by law. It is of course desirable, and indeed necessary, that proo- 1 11 CaL, 49. 2 [In special elections the notice called for by the law is absolutely essential to the validity of the election. State v. Tucker, 33 Mo, App., 620.] » Case of John Hoge of Penn., CL & H., 135. CHAP. VII.] REGULATIONS. , 139 lamation 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 no- tice (only two or three days) was sufficient, when it ap- peared 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.^ § 187. If a case should arise where no authority, either State or Federal, has fixed either the time or place of elect- ing 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 would be within the power, and therefore within the discretion, of the House. § 188. But whether a military Governor may, under any circumstances, order or fix the time of an election for Rep- resentatives 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 other- wise, 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 hold- ing of an election. The reason for this doctrine was thus stated by the report of the Committee of Elections in Flarv- ders V. Hahn, in the Thirty-seventh Congress,^ and again re- peated in case of M. F. Bonzcmo^ as follows : " Representation is one of the very essentials of a repub- lican 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 1 State V. Berg, 76 Mo. 136. 2 1 Bart., 446. 3 2 Bart, 1. 140 BLBonoNS. [chap. vn. that the armj of the Union entered New Orleans, drove ont the rebel usurpation, and restored to the discharge of its ap- propriate 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 im- poses in the interim between the absolute reign of rebellion and the complete restoration of law." The report further shows that inasmuch as the Confederate Governor could not be expected to call an election, either the military Governor must call it or no election could be had ; and the committee said : " 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 rep- resentation, or recognizing as valid the time fixed by the military Governor? Are this people to wait for representa- tion here till their rebel Governor returns to his loyalty and appoints a day for an election, or is the government to guar- antee 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 administra- tion void and a usurpation. But necessity put him there and keeps him there." § 189. In the case of Jared Perkins of New Hampshire^ the following facts appeared: On the 2d day of July, 1846, the State of Kew 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 Thirty-first Congress. In July, 1 1 Bart, 142. CHAP. VII.] EEGULATIONS. 141 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 Eep- resentative from the old third district, resigned. A vacancy having been thus created, the Governor ordered an election 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 sound- ness 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 shaU 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 shaU fill a vacancy which may occur from the old. The true rule, there- fore, 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 repre- sented. And if a State Legislature shall abolish such district after it has elected its Eepresentative, and shall make no pro- vision for filling a vacancy, it may, in the event of a vacancy, be obliged to go unrepresented for the time being. § 190. The case of Jared Perkins, supra, was expressly overruled in the more recent case of Hwnt v. Menard} 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 five Con- gressional districts, by its terms purports to repeal all laws and parts of laws in conflict with said act, but is silent on 13 Bart, 477. 142 EixonoNS. [chap. vn. the subject of vacancies tb*t might occur in the districts as then existing. " The language of the minority report in the case of Per- hms on the New Hampshire statute is appropriate on this point as well as on this o^se generally, and we quote from it as follows : " ' It does not purport to provide for any method of filling vacancies that might ocrur in the future, and, beyond all question, it was understood as providing only for the election of members of future CoT- tion of a high-license law did not depend upon a majority of all the votes cast at that election upon some other subject, but upon its receiv- ing a majority of the votes cast specifically for or against it. The pro- visions of the enabling act of February 22, 1889, under which the Dakotas, Montana and Washington became States, authorized the adop- tion of Constitutions by said States if such Constitutions received " a majority of the votes cast." It was held in State v. Barnes, 3 N. D., 319, that where a vote was taken upon the adoption of a Constitution at an election where a Governor was also to be elected, that the Constitution was adopted if it received a majority of the votes cast on the question of its adoption, and that it was not necessary that it should receive a majority of the votes cast for Governor]. 1 McDowell V. Rutherford Const. Co., 96 N. C, 514; 2 S, E. Rep., 351; [State V. Francis, 95 Mo., 44; Mayor of the City of Madison v. "Wade, 88 Ga., 699; Chester R. R. Co. v. Caldwell Co., 72 N. C, 486; Hawkins v. Carroll Co., 50 Miss., 736; State v. Sutterfield, 54 Mo., 391; State v. Bassfield, 67 Mo., 331; People v. Brown, 11 111., 478. By an act of the Legislature of South Carolina, incorporating the town of Florence, it was provided that the town might issue bonds for internal improvements upon a vote of the people approving it. All persons owning $100 worth of taxable prop- erty in the town could vote and were entitled to one vote for each $100. The court held that unless a majority of the taxable property was voted the election was void. Wilson v. Town Council of Florence, 39 S. C, 397; and Id., 40 S. C, 290. Where the Constitution provides that certain classes of municipal bonds shall not be issued unless a majority of the " qualified voters of the town " shall vote therefor, held, that a statute providing for the issue of such bonds if a majority of the persons voting shall vote for such issue was unconstitutional. Duke v. Brown, 96 N. C, 127. As to the meaning of the phrases " qualified voters," " major, ity of the voters of the town," and other similar phrases, see note to case of McDowell v. Rutherford Const. Co., 17 Am. & Eng. Corp. Cases, 412]. 156 ELECTIONS. [chap. VII. § 211. The case of Reed v. Corden'^ presented the im- portant question whether a State has the constitutional power to provide that, in case of a tie between two candi- dates for Eepresentative 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 en- titled to the seat was unwarranted by the Constitution, and that the record of such a decision was not admissible in evi- dence.^ This decision was put upon two grounds: 1. That the House of Representatives is composed of members chosen every second year by the people 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 mem- 1 CL & a, 35a 2 [It has been held by the Supreme Coiirt of Indiana that a statute of that State (Sec. 4736, R. S. 1881) which provides that, where an elec- tion results in a tie vote for opposing candidates, thejudges of elec- tion shall determine by lot the person entitled to the office, is not in conflict with the constitutional provision that all elections shall be by ballot, and is valid (Johnson v. State, 128 Ind., 16); and that election boards may be compelled by mandate to re-assemble and de- termine by lot which of the candidates for a township office who have received an equal number of votes shall be entitled to the office. Kim- merer V. State, 129 Ind., 589. After several inaffectual attempts to elect a temporary chairman of a nominating convention, a like number of votes being cast for the opposing candidates, the vote of one of the delegates was challenged on the ground that the vote in the caucus at which he claimed to have been elected was a tie, and that thereupon the matter was determined by the contesting delegates as follows: A bystander drew from his pocket a handful of coins, the candidates made their choice of "odd " or " even," and a counting of the coins re- sulted in favor of the sitting delegate. The chair thereupon appointed a committee on credentials, which reported that the sitting delegate was not entitled to a seat in the convention. Held, that the appoint- ment of such committee was proper and their determination sustained by authority. Beck v. Board of Election Commissioners, 103 Mich., 192w] CHAP, VII.] EEGULATIONS. 167 bers," it can never sanction the doctrine that any State can confer upon any officer or tribunal power to decide a ques- tion 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. It was held that the Representative must be chosen by the people ; and that if an equal number of votes are given to each candidate there is no choice, and the only remedy is in a new election. § 212. The State of Illinois has provided by a provision of its Constitution for minority representation in the State Legislature. This is accomplished by what is known as cu- mulative voting, the provision being as follows : " In all elections of Representatives aforesaid, each quali- fied voter may cast as many votes for one candidate as there are Representatives to be elected, or may distribute the same, or equal parts thereof, among the candidates, as he shall see fit ; and the candidates highest in votes shall be declared elected." ^ In !N"ew York and Ohio an attempt has been made to pro- vide for minority representation by statute, in the absence of express constitutional authority; but in the former State the constitutionality of the act has been seriously questioned, and in the latter altogether denied.^ In the Ohio case the rule is laid down that, where an office is to be filled by an election, the election must conform to the requirements of the Constitution, one of which is declared to be that each elector of the district is entitled to vote for a candidate for each office to be filled at the election. It was accordingly held that a statute of that State providing for the election of four members of a police board at the*same election, but which denied to an elector the right to vote for more than two members of such board, was in conflict with the Consti- tution of Ohio and void. A somewhat different question is presented by a statute which permits without requiring a voter to concentrate more 1 Constitution of Illinois, 1870, Art. 4, Sees. 7, 8. 2 People V. Kenney, 96 N. Y., 294; People v. Cissey, 91 Id., 616; State V. Constantine, 42 Ohio St., 437. 158 ELECTIONS. [chap, VH. than one vote upon a less number of candidates than the whole number to be chosen ; but it is believed that the same principle is involved ; for in either case the result is to per- mit the minority of the voters to choose part of the officers to be elected. If this be unconstitutional in the one form it is likewise so in the other. It would seem, therefore, that minority representation and cumulative voting can be pro- vided for only by constitutional provision.^ 'See note to case of State v. Constantine, 9 Am. & Eng. Corp. Ca&, 39 to 42. See, also, People u Perly, 80 N. Y., 624. [General Note on Subject op Minority Representation. — It is a very just criticism of the present system of elections that it does not afford to the minority a right to participate in the administration of the public affairs, nor a voice in declaring the policy to be adopted as rep- resentative of the community in which the election is held. This obvious defect in the elective or popular scheme of government has not yet been corrected. Numerous attempts have been made to secure to minorities their just and proportionate representation, and various schemes have been devised whereby this result could be ac- complished. These schemes for voting have been enumerated as follows: 1st. The limited vote, i. e., the vote for a less number than there are places, as for two when three persons are to be chosen- This method was introduced into the bUl of 1867 for reforming representa- tion in England. 2d. The cumulative vote, where the voter is allowed to cast as many votes as there are persons to be elected, and to distribute them among the various candidates as he may desire. This plan is especially applicable where the practice of voting by general tickets prevails. 3d. The election by lists, a plan originated by Mr. Gilpin, and said to work satisfactorily in Switzerland. By this plan each party puts in nomination a complete ticket, and each voter has the right to cast one ballot Upon ascertaining the total number of ballots cast, that sum is divided by the number of places to be filled, and each ticket secures places for its candidates in proportion to the number of votes cast by it, taking the persons elected from the head of the tickets. This scheme is said to be the most practical of any yet devised. 4tli- Preferential voting, a plan devised by Mr. Thomas Hare, and advocated by him in a book upon the subject published in 1859. This plan is too complicated and intricate to be useful in popular elections, and its theory ueed not be explained here. 5th. Substitute voting. By this method the number of votes nec- essary to constitute what is known as the " electoral quota " is first CHAP. VII.] EEGULATIONS. 159 § 213. A statute of New York provided that it should not be lawful for any person " to contribute money for any purpose intended to promote the election of any particular ascertained. This electoral quota is arrived at by dividing the num- ber of votes polled by the number of persons to be elected. This being known, candidates may cast surplus votes, or those over the electoral quota, and insufficient votes, or those under, and may thus fill up the places which have not been filled by the voting of the electors. 6th. Proxy voting, by which a representative may cast as many votes as he receives multiples of the electoral quota. Lieber's Civil Liberty, p. 177, note. In several States efforts have been made to put some of the plans in operation, principally to secure minority representation in State Leg- islatures, but with very little success. This failure has been due partly to inherent deficiencies and objections, which are found in every one of the schemes outlined, and partly to the irregularity and impropriety of the proceedings taken to incorporate the systems into the State election laws where their introduction would be repugnant to the exist- ing Constitution. As instances of such failures due to this second reason, three cases may be cited. In Ohio an act was passed authorizing and providing for elections under the restrictive plan. That law was declared by the Supreme Court to be unconstitutional, it being held that every elector had the right to vote for every candidate or person to fill the offices provided by law to be elected by the vote of the elector, and a law which denied an elector the right to vote for more than two out of four persons to be elected took away from him a substantial right guaranteed by the Constitution. State v. Constantine, 42 Ohio St., 437. A second instance is found in the case of Maynard v. Board of District Canvassers, 84 Mich., 228. This case arose under an act of the Legislature of Michigan providing for the election of members of that body by the " cumulative " method of voting. The act was de- clared unconstitutional by the Supreme Court of the State, which ruled that, when the Constitution declared that a person possessing the prescribed qualifications of an elector should be entitled to vote at all elections, it prohibited by implication any elector from casting more than one vote for any candidate for office, as such had been the practi- cal construction of the Constitution ever since its adoption. Again, in 1891 the Legislature of New Jersey passed an act providing for the election of members of the assembly in assembly districts, allow- ing each voter to vote for but one member instead of voting for all. This was also held unconstitutional State v. Wrightson, 56 N. J. L., 126. In Pennsylvania, however, the courts seem to have adopted a differ- ent rule of construction. The late case of Commonwealth u Reeder, 33 L. R. A., 141 (Pa.), is one upholding such a restriction placed upon the 160 ELECTIOXS. [chap. VH. person or ticket^ except for defraying the expenses of print- ing, and the circulation of votes, hand-bills and other papers, previous to any such election." Under this statute it was voter. The law there in question provided that one might vote for six out of seven oflBcers to be elected, and this was held to be no violation of the constitutional rights of the elector in that State. The views ex- pressed in this decision, however, were not concurred in by the full court, and a strong dissenting opinion was written by Williams, J., which was approved by Chief Justice Sterrett. In Illinois a provision in an act for the election of trustees of a sani- tary district, that the voter may vote for as many candidates as there are trustees to be elected, or may cumulate his vote on a smaller number, is held not in conflict with the Constitution of that State (Art 7, Sec. 1), which provides that " every male citizen of the United States, over twenty-one years of age and possessing certain qualifications, shall be entitled to vote at all elections," as it does not make cumulative vot- ing compulsory and leaves voters free to vote for the whole number of candidates to be elected if they desire to do sa People v. Nelson, 133 IlL, 565. Turning now to an inspection of the schemes with regard solely to their intrinsic merits or defects, we find that they are open to objec- tion. Most of them are too tedious and complex to be generally prac- ticable. Space will not permit of an extended discussion here of the several plans, but as the scheme of voting on the " cumulative " plan seems to have attracted the most interest, and has been experimented with more than any other, let us observe one result of its operation, which, when it occurs, demonstrates a fatal weakness in its theory. This method, of course, cannot be of service when there is only one representative from a district to be elected. It reaches its greatest efficiency when there is a large number of candidates and offices and numerous divisions of public sentiment. But take the case where an electoral district sends two representa- tives to the Legislature, and let us suppose that the election be made through cumulative voting. Each of the two parties nominates two candidates, and the party in the minority, by casting all of their votes for one of their candidates, secures his election. This the majority cannot prevent, and it is thus found that the majority and the mi- nority are on a par, as far as representation is concerned, each having elected a representative. It is the very essence of a republican form of government that the majority should rule, and this policy pervades every election held under such a form of government. In the case above put this policy is en- tirely thwarted. In Illinois, where this system is in use for the elec- tion of representatives to the State Legislature, the foregoing criticism CHAP. VII.] KEGULATIONS. 161 held in Jackson v. Walker ^ that a contract to pay the plaint- iff $1,000 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 candi- dates 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 con- tributed. § 214. In Hurley v. Van Wagner^ however, it was held, under same statute, that an action will lie to recover compen- sation 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 par- ticular candidate for the Presidency during a canvass preced- ing a Presidential election. And in this latter case the Court expressed the opinion that the ruling in Jackson v. 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 does not apply, as each district elects three representatives. Its opera- tion in that State seems to be attended with the most beneficial re- sults. The cumulative method is of considerable value, also, for use in the voting of stock in corporations. By legislative enactment in the States of Nebraska, West Virginia, Missouri and California, cumulative voting for such purpose has been expressly permitted. These questions are ably and exhaustively discussed in Maynard v. Board of District Canvassers, supra. As regards cumulative voting in corporations, it has been held that constitutional provisions providing for this method in corporations ex- isting at the time the Constitution was adopted are void as to these corporations. These decisions were made on the theory that such pro- visions impaired the obligation of the contract between the State and the corporation, represented by the latter's charter. Hayes v. Com- monwealth of Pennsylvania, 82 Pa. St., 518; State v. Green, 78 Mo., ISa See, also. Am. & Eng. Cyc of Law, vol. 4, p. 954] 15 Hill, 27. 238 Barb., 109. 11 162 ELECTIONS. [chap. VII. true rule, independent of any statute, doubtless is, that all contracts entered into for the purpose of improperly or cor- ruptly influencing the voters at an election are void, because against public policy and contrary to sound morality. § 215. All votes obtained by paying or agreeing to pay money, or property, or anything of value, to electors there- for, are to be rejected upon proper proof by the court or tribunal trying a case of contest.^ This rule rest upon principles of great public importance, which are thus stated by the Supreme Court of Wisconsin in State v. Olin:^ " In our form of government, where the administration of public affairs is regulated by the will of the people, or a majority of them, expressed through the ballot-box, the free exercise of the elective franchise by the qualified voters is a matter of the higest importance. The safety and perpetu- ity of our institutions depend upon this. It is therefore particularly important that every voter should be free from any pecuniary influence. For this reason the attempt by bribery to influence an elector in giving his vote or ballot is made an indictable offense by statute. * * * The pay- ment or promise ol money or other valuable consideration for the giving of a vote no doubt constitutes the offense of bribery or attempt to bribe within the meaning of the stat- ute. Can a vote thus obtained in direct violation of the statute be considered a valid or legal vote ? If it can, then the very object of the statute, which is that it shall not be so obtained, is defeated. We are of the opinion that such votes are illegal, and that the judge was right in directing the jury to disregard them." § 216. It has never been seriously doubted that a vote obtained by an offer to the voter direct of a pecuniary or other valuable consideration therefor, is a bad vote, and I State V. Olin, 23 Wis., 327; State v. Purdy, 88 Id., 218; [Cowan v. Prowse, 93 Ky., 156]. s Supra, CHAP. VII.] EBGULATIONS. 168 should be rejected.^ In Dishon v. Smith''' it was held that the offer to give facilities for the public convenience of the whole county as an inducement to the people to vote for the removal of the county seat does not constitute bribery, and will not render void an election held to decide the question of such removal. This rule was re-affirmed in the case of Hawes v. Miller,^ where it appeared that certain citizens had executed a bond obliging themselves to remove the county jail and to purchase and furnish a site for county buildings, and offering other inducements to the public, all upon condition that the county seat should be removed by vote of the people. This was held not to invalidate the election.* There is, however, a clear distinction between an 1 [In Abbott V. Frost, 2 Bart., 594, the question arose as to the effect of giving employment to persons in the United States navy yard at Boston for the purpose of inducing them to vote for the sitting mem- ber. It was held that the votes of persons so employed, and accepting the employment with knowledge of what was expected of them, should not be counted. The committee say: The rules of law which we think should govern in the consideration of this case are embodied in the fol- lowing declarations: 1. If the giving of employment to the voters im- mediately prior to the election was for the purpose of inducing them to vote for the contestee, and such object was in any manner made known to the voter, and he accepted or continued in such employment after obtaining such information, he thereby became a party to the transaction, accepted its terms, and the onus of showing that he did not carry it out in good faith is on the contestee. 2. If it be shown that an elector enters into an agreement or understanding, direct or indirect, for a consideration to vote a specified party ticket or for a particular candidate, it is fair to presume that he casts his ballot in accordance with such agreement or understanding, and, unless the con- trary be made to appear, such presumjition becomes conclusive. Ballots thus obtained we hold to be illegal and ought to be disregarded. To count them in the general canvass is to place them on the same footing with the votes cast by the honest, free and independent voter. To seat a member upon majorities obtained through such influences is to defeat the very object for which the statute was created. See, also, Piatt v. Good, Smith, 650.] 2 10 Iowa, 212. 3 56 Iowa, 397. * [Douglass I'. County Commissioners, 23 Fla., 419. An election detef- mining that a county building shall be huilt is not invalidated on the 164 ELECTIONS. [chap. XU^ election held for the purpose of locating the site for a public building, and an election held to choose a public oflBcer to whom, for the time being, is to be confided some of the functions of government. This distinction is recognized by the Supreme Court of Iowa in Carrothers v. Russell^ where it is held that a candidate for public office, who, for the pur- pose of influencing voters, pledges himself, if elected, to pay into the treasury all the fees of the office allowed by law in excess of a certain sum annually, is guilty of ofiPering a bribe, and that such pledge not only invalidates the votes influenced thereby, but disqualifies him to hold the office if otherwise legally elected. The same doctrine, in substance, has been laid down in Wisconsin,^ in Missouri,' in !N^ew Hampshire,* in Indiana ' and in Massachusetts.' § 217. The doctrine of the cases last cited, that a candi- date for a public office cannot lawfully attempt to influence votes by an offer of public benefits and advantages to be granted in the event of his election, is no longer open to question. Such a transaction amounts to a sale of the office to the candidate making the most favorable offer to the pub- lic. Such a practice, receiving judicial sanction, would un- doubtedl}'^ tend, as was said by the Supreme Court of JS^ew Hampshire in Tucker v. Aikin, " to divert the attention of the electors from the qualifications of candidates to the terms on which they will consent to serve, and make the choice turn upon considerations which ought not to have an in- fluence." ground of corruption because workingmen were urged to vote for it on the ground that it would furnish them employment. Bd. of Sup. "Wayne Co. v. Judges Wayne Co. Ct. Court (Mich.), 64 N. W. Rep., 42.] 153 Iowa, 346. 2 State V. Purdy, 36 Wis., 2ia 3Stah9 V. Collier, 15 Mo., 393. 10 Cal., 853. > 14 Barb., 259. CHAP. VIII.] OFFICERS. 193 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 v. Low^^ it was held that a person elected to the office of justice of the peace, who neg- lected to take the oath of office and to give the security re- quired 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: " Sufficient facts appeared to show that Jones was a jnst- ice of the peace de facto at the time he rendered the judg- ment 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 per- sons are concerned, as if he had been an officer dejure, and that the title of the office can not be collaterally inquired into." Exactly the same point was decided in the same way in the case of Weeks v. Ellis,^ where a justice of the })eace had entered upon the duties of his office without taking the oath prescribed by law. And so, likewise, in the case of Keyser v. McKissan^* 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 v. Balch^^ 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 post- master under the United States, yet, having entered the former office under the formB of law, he was a justice of the » 4 Denio, 168. « 3 Barb., 324. » 2 Rawle, 139. *14Vt., 42a. 13 194 ELECTIONS. [chap. VHI. peace de facto, and his acts as such were valid as to third persons and the public.^ § 252. A mere usurper in an office can have no authority, and can perform no 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 accordiugly 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 com- missioned 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.^ In the same case the rule was laid down that no valid election can be held in an unorganized county — and that a county can not be considered as organized until there has been an elec- tion of county officers. * § 253. Sometimes the question may arise, which of two claimants is the officer, de facto; and in determing that question, it is only necessary to ascertain which is in posses- sion of the office exercising the functions thereof, under color of authority. By color of authority is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer. § 254. It has been held that where an office is in dispute between two persons, and the one in actual possession tem- porarily leaves the place where the business of the office is usually transacted, with no intention of abandoning the office or of giving place to his competitor, the latter can not, with full knowledge of these facts, take possession of the office and by proceeding with the performance of its duties, make himself the officer de facto. As between such claim- 1 See, also, People v. Staton, 73 N. C, 546; [State «. Goowin, 69 Tex., 55]. 2 Daily v. Estabrook, 1 Bart, 299. • And see Sawyer v. Haydon, 1 Nev., 75, and State u Collins, 2 Id., 351, where it is decided that no valid election can be held except under statutory authority. [Van Amringe v. Taylor, 108 N. C, 196.] OHAP. VIII,] OFFICERS. 1^5 ants, and under such circumstances, the one previously in possession must be regarded as the officer de facto} § 255. It is manifest that the acts of one claiming to be an officer de facto may be assailed on the ground that the office itself did not lawfully exist. The doctrine we are con- sidering applies to the officer and not to the office. There can be no such thing as an office de facto. The doctrine respecting the validity of the acts of officers de facto pre- supposes an office which the law recognizes.^ An officer who by law holds for a fixed term and until his successor is qualified is ad interim an officer; if not de jure, at least de facto? [§ 256. Under the act of Congress, now repealed, pro- viding regulations for the conduct of elections for Kepre- sentatives in Congress and electors for President and Yice- President, it often happened that there were present at the same election both State and Federal officials charged with duties connected therewith. In such case it has been held that each official should be permitted to perform such duties as were required of him by the law under which he acted, unless a conflict of jurisdiction arose, in which case the para- mount authority was in the officer who acted for the United States and under and within the provision of an act of Con- gress. This for the reason that in so far as Congress had prescribed regulations for the control of Federal elections, they superseded and annulled aU conflicting regulations pre- scribed by the States.* It has accordingly been held that a local police officer had no power to arrest a deputy United States marshal while on duty under the act of Congress in keeping the peace at a Federal election, nor to obstruct him 1 Braidy v. Theritt, 17 Kan., 468. ^Ex parte Snyder, 64 Mo„ 58; [Norton v. Shelby Co., 118 U. S., 425; Carlton u People, 10 Mich., 250; People v. White, 24 Wend.. 539; Peti- tion of Hinkle, 31 Kan., 712; Burt v. Winona, 31 Minn., 473; 36 Alb. Law J., 506]. SThreadgill v. Railroad Co., 73 N. C, 178. ♦ Ex parte Siebold, 100 U. S., 871; ante, § 143 et seq. 196 ELECTIONS. [chap. vin. in the performance of his duties.^ In that case it was held that such an arrest constituted an offense under the act of Congress, and that no provision of a State law could author- ize a local policeman to obstruct a deputy marshal in the discharge of the duties imposed upon him by act of Con- gress.^] [§ 257. By virtue of Sections 5511-5515 of the Kevised Statutes of the United States, it was made an offense against the United States for an officer of election at which a Eep- resentative in Congress was voted for, to violate any duty in regard to such election imposed by the State law, but these provisions of the Federal statute did not embrace any act which had exclusive reference to the election of State and county officers, and which did not affect the choice of such Eepresentative.' If, however, the act charged was a violation of a State law reffulatino^ the conduct of an elec- tion held for the purpose of choosing Representatives in Congress and State officers, it was not necessary for the United States to charge in the indictment nor prove that the intent was to affect the election of the former.*] § 258. Where a statute imposes specific duties upon an officer of election, it is necessarily implied that he shall have a full and fair opportunity to discharge such duties, and that he shall not be hindered, impeded or interfered with in the 1 United States v. Conway, 18 Blatchf., 566. 2 In the absence of the marshal and his deputies, it has been held that a United States supervisor has a right to arrest without warrant any one wlio interferes with him in the discharge of his duty at and in connection with a Federal election. The use of opprobrious and offen- sive language may constitute such interferenca Ex parte Geissler, 9 Biss. Cir. Ct., 492. It seems that under the Revised Statutes of the United States (Sec. 2021, now repealed), special deputy marshals might have been appointed by the marshal to keep the peace at Federal elec- tions, whether supervisors of elections have been appointed or not Re Deputy Marshals, 22 Fed. Rep., 153. (Treat, J., dissenting.) ^Ex parte Perkins, 29 Fed. Rep., 900, reversing ruling of United States District Court for Indiana. *[!» re Coy, 127 U. S., 731; United States v. McBosley, 39 Fed. Rep.,. 897.] CHAP. Vni.] OFFICEKS. 197 performance thereof. It has accordingly been held that under Section 2018 of the Ee vised Statutes of the United States, which provided that the supervisors of election must "personally scrutinize, count and canvass each ballot," a supervisor had the right not only to be present in the room where the ballots were counted, but also to have each ballot in his hands for a reasonable time to enable him intelligently to discharge this duty.^ The supervisor could not be con- fined to the act of watching the canvassers while they can- vassed and counted the ballots. § 259. Where the law requires an inspector to sign and certify election returns, he is not at liberty to accept the de- cision of the poll clerks and to sign and certify the returns as prepared by them. He is charged with the duty to ex- amine, investigate, and thus to inform himself, for the in- telligent exercise of his duty. If necessary he may correct the returns or require their correction before signing. He cannot shield himself by pleading the errors or misconduct of the poU clerks.^ § 260. Where a statute required the judges of election in canvassing the vote to read and announce each ballot by itself, it was held to be a departure from its provisions to divide the ballots into lots of ten or twenty, and then read and announce them in the aggregate, and that a recount should be ordered by proper authority in such a case.' In the same case it was also held that a statute requiring election judges to seal ujp the ballots is merely directory, and is sufficiently complied with if the ballots are kept intact. 1^0 objection can be found to this ruling provided it be un- derstood that the party asserting the validity of the return is bound in such a case to show affirmatively that the ballots have been kept intact. If they are, in disregard of the stat- 1 United States v. aark, 23 Fed. Rep., 387. 2Bolano v. People, 25 Hun (N. Y.), 42a » O'Gorman v. Richter, 31 Minn,, 25. 198 ELECTIONS. [chap. vm. ute, returned open and unsealed, there should be a showing that they have not been tampered with.^ § 261. It is well settled that the duties of canvassing oflBcers 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 v. Steers^ 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 de- stroy the rights of parties without notice or opportunity to be heard — a thing which the law abhors and prohibits."* § 262. 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 1 [Where the law reqtiired the canvassing officers to count the ballots before the ballot-box was removed from the place where the election was held, a disregard of this provision was held to be a sufficient reason for excluding the returns. Spencer v. Morey, Smith, 437.] 2Dalton V. State (Ohio), 1 West Rep., 773; Justices' Opinions, 58 N. H., 621; People v. Wayne Co. Canvassers, 12 Abb., N. Y., New Cases, 7; a C, 64 How. N. Y. Pr., 334; Kortz v. Greene Co. Canvassers, 12 Abb., N. Y., New Cases, 84; Leigh v. State, 69 Ala., 261; [Page v. Letcher, 11 Utah, 119; 39 Pac Rep., 499; State v. Van Camp, 36 Neb., 91; People V. Board of State Canvassers, 129 N. Y., 360; Mead v. Carroll, 6 D. C, 338 J. 3 44 Mo., 223. * picKinney v. Peers, 91 Va., 684; In re Woods, 5 Misc. Rep., 575; State V. Wilson, 24 Neb., 139. A common council sitting as a board for the canvassing of election returns of members elected to that body is bound by the returns, and cannot go behind the returns and inspect the bal- lots in order to determine the result. State v. Trimbell, 13 Wash., 440.] CHAP. Vni.] OFFICERS. 199 returns, a/nd tney Gormot go hehind the returns for any pv/r- pose^ and this necessarily implies that if a paper is presented as a return, and there is a question as to whether it is a re- turn or not, they must decide that question from what ap- pears upon the face of the paper itself.^ Thus, in New York, it has been held that 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.'^ § 263. And in Morgan v. Quackenbush^ we find this lan- guage : " They (the canvassers) are not at liberty to receive evidence of anything outside of the returns themselves; their duty consists in a simple matter of arithmetic." * In the case of People v. Head 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 candi- dates and declare the result." But in determining as to the 1 [State V. Hill, 20 Neb., 119; State v. McFadden, 46 Neb., 668. The duties of the Secretary of State of the State of Louisiana in promul' gating the returns of election held to be purely and exclusively minis- terial. State V. Mason, 44 La. Ann., 1065. A board of canvassers can- not inquire into the validity of a certificate of nomination of a nominee for office. State v. Board of Canvassers of Cascade Co., 12 Mont., 537.] 2 People V. Van Slyck, 4 Conn., 297, 323. To the same effect is the rul- ing in Ex parte Heath, 8 Hill, 47. See, also, Commonwealth v. Em. minger, 74 Pa., 479; Moore v. Jones, 76 N. C, 182. For discussion of the duties of canvassing oflBcers in Ohio, and of the powers of courts mak- ing a judicial review of the proceedings, see Phelps v. Schroder, 26 Ohio St., 549; pMcKinney v. Peers, 91 Va., 684]. »22Barb., 72, 77. < See, also, Thompson v, Ewing, 1 Brewst., 77, where it is laid down that the return judges cannot inquire into a question of fraud. See, also. State v. The Governor, 1 Dutch. (N. Y.), 348; Brown v. O'Brien, 3 Ind., 423; State v. Jones, 19 Ind., 856; People v. Kilduff, 15 HL, 492; Peo- ple V. Head, 25 111., 325, 328. * [A canvassing board should reject the return made by the judges of election if not accompanied by the certificate required by statute. Law- rence V. Schmaulhausen, 123 IlL, 321.] 200 ELECTIONS. [chap. vni. 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. § 264. 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.^ In Attorney- GeTieral v. Barstow, supra, the Supreme Court of "Wisconsin say that the canvassing officers " are to add up and certify by calculation the nuniber 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."^ § 265. In Morgan v. Quackenbush ' 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 re- sult, and that this was a purely ministerial act. They are judges of nothing, and not allowed to receive evidence of anything 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, how- ever, also held that their determination, although based upon iDishon v. Smith, 10 la., 312; State v. Cavers, 23 la,, 343; Attorney- General V. Barstow, 4 Wis.,. 749; People v. Van Cleve, 1 Mich., 362; Thomp- son, Circuit Judge, 9 Ala., 388; Mayo v. Freeland, 10 Mo., 629; State v. Harrison, 38 Mo., 540; State v. Rodman, 43 Mo., 256; State v. Steers, 44 Mo., 228-9; Bacon v. York Co., 26 Me., 491; Taylor v. Taylor, 10 Minn., 107; O'Farrall u Colby, 2 Minn., 180; Marshall v. Kerns, 2 Swan (Tenn.), 66; People v. Wayne Ca Canvassers, 12 Abb. (N. Y.) New Cases, 7; S. C, 64 How. N. Y. Pr., 334; Leigh v. State, 69 Ala., 261; Bull v. Southwiok, 2 N. M., 321; [Brown v. Rush, 38 Kan., 436]. ' A board of canvassers sitting to correct voting lists, sometimes exer- cises judicial functions. Thus, a statute of Rhode Island regulating the functions of such officers provided that " unless they shall be furnished with sufficient evidence of the omission and qualifications as a voter of the person omitted," etc. It was held that this statute imported that the canvassers were to judge of the sufficiency of the evidence. Keenan V. Cook, 13 R. I., 153. »23Barb. (N. Y.), 72. €HAP. VIII.] OFFIOEES. 201 illegal evidence, must be received as jprima facie evidence that the person declared elected was entitled to the office,^ and that in attempting afterwards to re-canvass the vote and set aside their first certificate they transcended their author- ity, and assumed a power belonging only to a tribunal authorized to try cases of contested elections under the law.' § 266. There are statutes in some of the States which ex- pressly confer upon a board of canvassing oificers 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,' in Alabama,* [in West Vir- ginia *], and in Louisiana and in 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 Kepresentatives 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 evi- dence to be illegal or unjust.' § 267. A canvassing board having once counted the votes, and declared the result according to law, has no power or authority to mike a recount. When this duty is once fully performed, it is performed once and forever, and can- not be repeated.'^ In Bowen v. Hixon the Court say, " To 1 [State V. Calvert, 98 N. C, 580.] » [State V. Boone, 98 N. C, 573.] 8 See Giddings v. Clark, 42d Congress. * See Norris v. Handley, Id. * [Smith V. Jackson, Row., 9.] ^ See cases last above cited. 7 Bowen v. Hixon, 45 Mo., 340; Gooding v. Wilson, 43d Congresa [But see Roemer v. Board of City Canvassers of Detroit, 90 Mich., 27; McKin- ney v. Peers, 91 Va., 684. The same rule applies to the duties of return- ing officers. It has been decided in New York that where inspectors of election returned two statements at different times, the second show- ing a different result from the first, that the inspectors had no power 202 ELECTIONS. [OHAP. Vm. 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 Gooding v. Wilson the report of the committee has this language: " On examination of precedents it does not appear that this House favors the setting aside of oflBcial and formal counts, made with all the safeguards required by law, on evidence only of subsequent informal and unofficial counts, without such safeguards. !N"o instance was cited at the hear- ing where the person entitled by the official count was de- prived of his seat by a subsequent unofficial count. On principle it would seem that if such a thing were, in the ab- sence 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 equiva- lent to those provided by law. In the absence of either of these conditions, the proof, as mere matter of fact and with- out reference to statutory rules, would be less reliable and therefore insufficient." ^ § 268. In Minnesota it has been held, in accordance with the principle just stated, that if the boar^of canvassers, after canvassing the votes, adjourn without day, their power in the premises is at an end, and they cannot reassemble ; neither can a court by mandamus compel them to reassemble, or give them any power in case of their so doing.^ or jurisdiction to change their first statement, and that the second was wholly invalid. People v. Albany Co. Canvassers, 46 Hun, 390]. 1 And see, also, Hadley v. City of Albany, 33 N. Y., 603; Hartt v. Har- vey, 33 Barb., 55; Ramsay v. Calaway, 15 La. Ann., 464; Chrisman v. Anderson, 1 Bart., 328; State v. Dunne worth, 21 Ohio, 316. And it i& clear that canvassing or returning officers have no authority after the canvass is closed to recount the ballots. Blane v. People, 4 Neb., 509. 2 Clark V. Buchanan, 2 Minn., 346; \In re Board of Canvassers, 12 N. Y. Sup., 174; Rice v. Board of Canvassers, 50 Kan., 149; Rosenthal v. Stat© Board of Canvassers, 50 Ean., 129]. CHAP. VIII.] OFFICERS. 203 The same doctrine was strongly asserted in State v. Durv- neworth^ where it was held that the officers of an election board after its regular dissolution aiXQ functus 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 sub- sequent tally -sheet made on the fifth day on recount of bal- lots then found in the box, by four officers of the municipal- ity, some of whom were members of the election board, will not be received to impeach the original canvass and tally- sheet. § 269. Although it is true, as a general rule, that an elec- tion board, having completed its duties and dissolved, is fvm,ctus officio and can perform no official acts thereafter, yet there may be cases where such a board has improperly ad- journed without performing its duties, in which the courts may by mandamus compel it to reassemble and complete its work according to law.^ Thus, it has been held by the Supreme Court of Kansas that where a board of canvassing officers has adjourned after making only a partial canvass of the votes cast, mandamus will lie to compel them to reas- semble and complete the canvass.' Upon this question the authorities are not uniform. In New York * and Ohio' there are decisions holding to some extent the contrary doctrine. But the ruling in the Kansas case is supported by the Iowa decisions.' And we think the reasoning of the Supreme Court of Kansas is sound. The Court, by Brewer, Judge, said: 121 Ohio, 216. 2 [State V. Board of Canvassers of Choteau Ca, 13 Mont, 23; Steele v. Meade (Ky.), 33 S. W. Rep., 944] 3 Lewis V. Commissioners, 16 Kan., 102. * [People V. Reardon, 49 Hun, 425;] People v. Supervisors, 13 Barb., 217. » State V. Berry, 14 Ohio St., 315. estate v. County Judge, 7 la,, 186; State «. Bailey, Id., 39a 204 KLEonoNS. [chap. vm. « The view taken by the Iowa Court seems to ns the cor- rect one. It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge this duty by can- vassing only a part, and refusing to canvass the others, as by refusing to canvass any. And it is settled by abundant authority, that where the board refuses to canvass any of the votes it may be compelled to do so by mandamus, and this though the board has adjourned sine die} Hagertg v. Ar- nold^ is a case in point. The canvass is a ministerial act, and part performance is no more a discharge of the duty en- joined than no performance. And a candidate has as much right to insist upon a canvass of all the returns as he has of any part, and may be prejudiced as much by a partial as by a total failure. The adjournment of the board does not de- prive the court of the power to compel it to act, any more than the adjournment of a term of the district court would prevent this court from compelling by mandamus the sign- ing of a bill of exceptions by the judge of that court, which lad been tendered to him before the adjournment. As a general rule, when a duty is at the proper time asked to be done, and improperly refused to be done, the right to compel it to be done is fixed, and is not destroyed by the lapse of che time within which in the first place the duty ought to have been done." § 270. A very similar rule was laid down by the Supreme Court of Missouri in State v. Berg^ where it appeared that the board of canvassers of election returns had completed the canvass and made up an abstract of the votes before the expiration of the time limited by law for the performance of those duties, but the abstract was still in the possession of a member of the board when the mandamus proceedings were instituted and when the alternative writ was served requir- ing them to count certain votes which they had illegally rejected. It was held that the writ was properly issued and 1 [State V. Trimbell, 12 Wash., 440.] » 13 Kan., 367. S76Mo., 13& CHAP. Vm.l OTTICEB8. 805 that the board could be required to obey its mandate although it had finally adjourned prior to the service of the writ.* § 271. 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, " they shall forthwith notify " the ward ofiicers, " who shall forthwith make a new and ad- ditional 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 re- quired by law to make their returns or declare the result of the election in said city." They can not be made after the result is declared, and their value must depend upon their being made by the returning officers, without delay.* § 2T2. 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 v. Moore,^ the credentials presented were signed by the sheriffs 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 prima facie^ 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 * And see State v. Trigg, 72 Mo., 365 ; State v. Commissioners, 23 Kan., 264; Kislert). Cameron, 39 Ind., 488; Clark «. McKenzie, 7 Bush (Ky.), 523 ; Dew v. Sweet Springs District Court, 3 Hen. «fe Mun., 1 ; Elisha Strong, Petitioner, 20 Pick., 484 ' Sleeper v. Rice, 1 Bart., 472; See Opinion of Justices, 117 Mass., 599. »C1. &H.,715. 206 ELECTIONS. [chap. VHI. been withheld by the sheriff having it in charge, without any sufficient cause, and it is evident that the House had good reasons 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 sher- iffs, 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 the board, is the cer- tificate 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 he upon a canvass of the whole vote of the district. If a part of the vote is omitted and the certi- ficate 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 prima facie evidence, because non constat that & canvass of the whole vote would produce the same result. § 273. The act of Congress of May 31, 1870 ' [since repealed], provided 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 United States v. Clayton^ in the Circuit Court of the United States for District of Arkansas, the question arose whether the governor of a State was 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 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. » 13 Stat at Large, 145, Sec. 22. [Sec 5515 Rev. Stat] « Am. Law Reg. Vol. 10, 737-739; S. C, 2 Dill., 219. CHAP. Vin.j 0FFICEIL9. 207 A demurrer was interposed which raised the question above suggested, and it was sustained, the Court (Dillon J.) 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. § 2Y4. 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 Littell v. Rohins.'^ The rule is here placed upon two grounds, viz.: firat^ 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.^. In accordance with this rule it has been held that where the law allows the officers of the election, upon the happen- ing of certain contingencies, to adjourn the election for one or more days; and if it be shown that they did in fact so adjourn the election, it will be presumed that the adjourn- ment 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 as we have seen, stand until shown to have been wrong. In GogginY. Gilmer,^ it was further held, and very prop- erly, that were the officers of the 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 accommo- dated 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 > 1 Bart., 138. 2[Thobe V. Carlisle, Mob., 323; Lowe v. Wheeler, 2 Ells., 61.] »1 Bart., 70. 208 ELECTIONS. [OKAP. Vin. 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. § 275. This is unquestionably the sound doctrine, not- withstanding a contrary decision in one of the earlier cases, from the same State. ^ In this latter case the committee went into inquiry as to whether in point of fact the contin- gency 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 adjourn- ment was illegal and rendered the subsequent proceedings illegal. The case, however, did not turn upon this question, and for this reason, perhaps, it was not more carefully con- sidered. A similar question arose in the case of Trigg v. Preston,^ and it was there held that an adjournment of an election by the sheriff under a statute giving him discre- tionary power to adjourn in case of rain, was presumed to be a valid adjournment. § 276<. 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 rend- ered doubtful, the result.* 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 formally rejected.* Kor is it « Bassett v. Bayley, CI. & H., 254 » CI. & H., 78. ■ Scranton Borough Election, Bright Elec. Cas., 4591 *§23o. CHAP. VIII.] OFFICERS. 209 necessary to prove in such a case how each 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. 1 Where a class of persons are unlawfully excluded from the right to vote by the regular election officers, they have no right to organize independent or outside polls and cast their ballots thereat and have them counted. Their remedy is to proceed to contest the validity or result of the election ; and they can, if they choose, institute proper proceedings against the election officers. * § 2^%. Where an election district is, by the enactment of a law, divided in to two separate districts, with two separate places of holding an election, the functions of the election offi- cers of the old district are destroyed, and they can not act in either of 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 com- plete new ones, does annihilate the old, and it is well settled, that the official functions of local officers fall with the politi- cal annihilation of the locality for which they were chosen or appointed.* § 2T8.. The law is well settled that statute certifying offi- cers 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.^ This rule of course applies to election returns, and to all certificates which are by law required to » See § 488 et seq. * Gauze «. Hodges, Contested Election Cases in Congress, 1871 to 1876, page 89 ; Ward ®. Sykes, 61 Miss. 649. •Penn. Dist. Election Case, Bright. Elec. Cas., 617; North Whitehall «. South Whitehall, 3 S. & R, 116. * Switzler «. Anderson, 3 Bart., 874; State v. Berg, 76 Mo., 176. 14 210 ELECTIONS. [chap. Yin. be made by oflBcers of election, or of registration, or by re- turning 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 re- jected as surplusage. § 279. The inspectors of an election having received the vote of a person, and deposited the same in the box, can not 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 can not be presumed to know how any person voted, and, therefore, can not know which ballot to exclude. The rule is, therefore, that the moment the ballot is deposited, all con- trol over it, and all power to inquire as to its legality, by the officers of the election, is ended. * § 250. 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 * Hartt V. Harvey, 32 Barbour, 55. Inspectors of election have no authority, on the assertion of one who claims to have voted by mistake In the wrong precinct, to withdraw from the ballot box and destroy a ballot which he identifies as the one or similar to the one he had voted. Harbaugh •. Cicot, 33 Mich., 241. See also §§ 230-234 CHAP. VIII.] OFFICEES. Mt their record to correspond with the declaration of the vote as publicly made bj the moderator, and does not authorize them to make by amendment a record which they could not have made in the first instance, i § 2'81. Where the law requires that the polls shall be kept open until sunset, this is probably equivalent to de- claring that they shall be closed at sunset, though upon this point the committee in Hogan v. Pile^^ refrained from ex- pressing 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 can not 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. § 282. 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 regard to the time. Ac- cordingly, 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.* This doctrine has been uniformly maintained by the courts, and nothing is better settled. ■* » Opinion of the Justices, 58 N. H., 640. « 2 Bart., 281. • Ex parte Heath, 3 Hill, 4i. * People v. Allen, 6 Wend., 486, and cases there cited; Colt «. Eves, 13 Conn., 242, 253-255, and cases cited. 212 ELECTIONS. [chap. vin. § 283. Likewise statutes directing the mode and manner in which the officers of an election shall proceed in the con- duct thereof are, as shown elsewhere, generally to be re- garded as directory unless the contrary plainly appears upon the face of the statute.^ It has accordingly been held that 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 alpha- betical copy in connection with the original, will not affect the validity of the poll.'^ § 284. "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 has been held that it is not lawful for the officers of election to pro- vide two or more ballot-boxes at different places within such precincts.' It is plain that the power to multiply vot- ing places would be an exceedingly dangerous power, and one which might be used for purposes of corruption and fraud.* § 285. In the case last cited one of the grounds of con- test was, that the county court being authorized to fix the places of voting, and arrange the voting precincts, had per- formed 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 should do so, and i§§ 225-228; [Smith v. Jackson, Row., 9. A statutory provision re- quiring the result of a vote to remove a county seat to be certified sep- arately from the vote upon other matters submitted at the same elec- tion is mandatory. Welch v. Wetzel, 29 W. Va., 63]. 2Hogan V. Pile, 2 Bart, 281. > [Contra, Bowers v. Smith, 111 Mo., 45.] * Sloan V. Rawles, 43d Congress; [Smith v. Shelley, 2 Ells., 18]. CHAP. VIII.] OFFICEES. 213 the law of Missouri having imposed upon the county court the duty of establishing voting places, that court had the right to fix the number in its own discretion, and the exer- cise of that diseretion can not 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 elec- tion." 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, shall fraudulently so arrange them as to disfran- chise 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. § 286. 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 exam- ple, 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, pre- vented 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 elec- tion should be held void, upon the ground, that whatever in point of fact prevents a fair and free election, whether so in- tended or not, must render the election null and void.^ A different question would arise in cases where the legislature by statute has fixed the places of voting, and where no other 1 [State V. Harwood, 36 Kaa, 236.] 214 ELECTIONS. [chap. VIII. authority has power to alter or change them. Probably it would not be competent to show that in the exercise of this power the legislature has been actuated by improper motives. The only question which could arise would be as to the con- stitutionality of the legislation, and it would be necessary to show that the statute was of such a character as to impair the constitutional rights of the electors, in order to hold it void. § 28Y. If a voter, upon being challenged and questioned, admits that he has not been naturalized, or, that his natu- ralization 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, i And a simi- lar rule prevails in most of the States. The true rule no doubt is, that if the judges believe that Ihe person offering to vote has not been legally naturalized, they may, at their peril, refuse to receive his ballot or to ad- minister the oath; but the ofier on the part of the person desiring to vote to take the prescribed oath raises a pre- sumption that he is a legal voter, and if the oflSeers of elec- tion refuse his vote notwithstanding such offer, it would probably be held, in a proceeding against them for such re- fusal, that they must show afllrmatively that such person was not entitled to vote.^ i People V. Gordon, 5 CaL, 335. * [People V. Burns, 75 Cal., 627. It has been held by the Court of Ap- peals of New York that under a statute which provides that each elector shall deliver his ballot to one of the inspectors in presence of the board; that if challenged the inspector shall administer an oatfi to him and ask him certain prescribed questions; and that if the chal- lenge shall not be withdrawn the inspectors shall administer to the elector a general oath, in which he states in detail that he possesses all the legal and constitutional requirements; and that if he refuse to take such oath his vote shall be rejected, — the inspectors, being minis- CHAP. Vni.] OFFIOEES. 216 § 288. A board of commissioners authorized by law to appoint inspectors of elections before a certain date cannot defeat the election by failing or refusing to make such ap- pointment. Mandamus will lie to compel the appointment after the time designated, which appointments when made will be as valid as if made at the proper time.^ terial officers, have no discretionary power to reject the vot« of an elector who has answered the statutory questions and taken the pre» scribed oaths, even though he has failed to satisfy them as to his qual- ifications. People V. Bell, 119 N. Y., 175.] 1 People V. Commissioners, 67 How. (N. Y.) Prac., 44& CHAPTER IX. ELECTION OFFICERS — CIVIL LIABILITY FOE MISCONDUCT IN OFFICE. § 289. Wilful and corrupt denial of right of voteR 289. In what cases malice must be shown. 289, 290. Rule in Massachusetts and Ohia 291. Rule in Pennsylvania. 292. Rule where duty is quasi-judicial 293. 294. Honest mistake by registering officer. 295-297. Statutes prescribing specific duties must be obeyed. 295, 296. Duty of election board where voter offers to take statutory oath. 297. What will amotint to seasonably placing voter's name upon the list. 298. Duty of voter to furnish evidence of his right \ 298. Statements of voter as to his place of residence may be proven. 299. Malice not presumed. 300. Evidence that officers of election knew that plaintiff differed from them in his political sentiments. 301. Exemplary damages, when allowed. § 289. 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 sev- eral of the States, as we shall presently see, it is regarded as suflBcient to show that the plaintiff has been unlawfully de- prived 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 neces- sary 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.^ In England, and in most of the States of the Union, the 1 Humphrey v. Kingman, 5 Mete., 162L CHAP. IX.] OFFICERS. 217 rule above stated is regarded as well settled, and no action is held to be maintainable against an officer of election for re- jecting the vote of a citizen, without proof that such rejec- tion was wilful and malicious. In Massachusetts, by a series of decisions, the law is settled otherwise.* 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 wilful- ness on the part of the officer, who, in the face of such evi- dence, refuses him the privilege of voting. The rule laid down in the Massachusetts cases has been followed in Ohio,^ and also in Wisconsin.* But the weight of authority is decidedly the other way.* Even in those States where the Massachusetts 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. 5 In Jeffries y, Ankeney, awpra^ the Su- preme Court of Ohio said: »Killiam ©.Ward, 2 Mass., 236; Lincoln «. Hapgood, 11 Mass., 350; Henshawt). Foster, 9 Pick,, 312; Capen v. Foster, 12 Pick., 485; Blanch- ard V. Stearns, 5 Mete, 298. 8 Jeffries v. Ankeney, 11 Ohio, 372; Anderson v. Milliken, 9 Ohio St., 568. » Gillespie v. Palmer, 20 Wis., 544. ♦Jenkins v. Waldron, 11 Johns., 114; Weckerly «. Geyer, 11 S. «& R, 35; Moran v. Rennard, 3 Brewst., 601; Commonwealth v. Sheriff, 1 Brewst, 183; State v. Smith, 18 N. H., 91; State v. Daniels, 44 N. H., 383 ; State v. McDonald, 4 Harr., 555 ; State «. Porter, Id., 556 ; Carter v Harrison, 5 Blackf., 138; State v. Robb, 17 Ind., 536; Peavey v. Bobbins, 3 Jones (Law), 339; Caulfield «. Bullock, 18 B. Mon., 494; Morgan v. Dudley, Id., 693; Miller v. Rucker, 1 Bush., 135; Rail v. Potts, 8 Humph., 225; Bevard v. Hoffman, 18 Ind., 479; Anderson «. Baker, 23 Md., 531. » Bright. Elec. Cas., 184. 218 ELECTIONS. [chap. IX. « 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 forma 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 wiU be nominal and Bmall." § 290. And the Supreme Court of Massachusetts, while maintaining the rule that election officers are liable for re- jecting 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 v. Haj}- good,^ 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 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 some- times 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 v. Foster ^^ the same Court assessed a fine of only one dollar against an election officer who had rejected a 1 11 Mass., 857. « 9 Pick., 8ia. CHAP. IX.] OFFICEKS. 219 legal vote, but who had done so in the honest discharge of his supposed duty.* § 291. The Supreme Court of Pennsylvania, in Weckerly V. 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 can not 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 cir- cumstances; direct and positive proof in a case of this kind is hardly to be expected. But a man who is placed in public station as an officer of the commonwealth, or of a corpora- tion, 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 Ashhy v. White,^ and has been held for law ever since." § SOS.. It has been recently held by the Supreme Court of Connecticut that a board of registration clothed with power to decide upon the qualifications of an elector, in the exercise of that power acts in a quasi judicial character, and that public policy demands that the rule which exempts judi- cial officers from personal liability for mistakes or errors of judgment in the exercise of their functions should be applied ^ The later cases in Massachusetts seem to establish the rule that the oflBcers of election are liable to an action of tort brought by a voter who having produced proper and sufficient evidence of his qualifications, has nevertheless been refused the privileges of an elector. Lombard v. Oli- ver, 7 Allen, 155 ; Harris «. Whitcombe, 4 Gray, 433 ; Larned «. Wheeler, 140 Mass., 390. 2 11 S. & R., 35. » 1 Bro., P. C, 49; [1 Smith's Leading Cases, 472], 220 ELECTIONS. [chap. IX, to snch boards.! In this case the Massachusetts rule is criticised and dissented from, the Court saying: "We have no disposition to question the validity or strength of the reasoning in those cases, theoretically con- sidered. It is sufficient to say that with nearly seventy years' experience under our Constitution, it is believed that the evils apprehended have not existed to any considerable extent. Indeed, it is believed that if the Massachusetts rule prevailed here, the evils that would arise from increased litigation, subjecting men who, it must be presumed, endeavor honestly and fairly to discharge their official duties, to annoyance and expense, would be greater than any we have heretofore experienced. Yiewed in the light of experi- ence, we can not regard those reasons as sufficient to induce us to depart from the general rule. " For two thirds of a century our system has been in operation, and we are not aware that the records of our courts show any cases of tin's description. This circum- stance, though not in itself a decisive argument, tends strongly to show the almost universal sense of the profession during that time, that such an action can not be maintained. "As a rule we think the duties devolving upon boards of registration are fairly and honestly discharged. Doubtless it occasionally happens that a man entitled to vote is excluded or one not entitled to vote is admitted; but so far as such cases result from mistakes it is hard to subject the members of the board to an action. "We think it not politic or wise to expose those upon whom the law casts the burden of ascertaining the qualifica- tions of electors to the annoyance of private suits for errors in judgment. If they act wantonly or maliciously, there may be a private remedy; but that is not this case, as there is no allegation of wanton or malicious conduct. " We think that the general rule which exempts judicial > Perry v, Reynolds, 53 Conn., 627; 18 Am. & Eng. Corp. Ca&, 114 CHAP. IX.] OFFICERS. J81 ojQBcers from liability should continue to apply to boards of registration, so long as they act in good faith and within their jurisdiction." § 293. It has been held in Missouri that registering offi- cers 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 in- jured.^ § 294. In the case cited in support of the preceding section the doctrine is laid down by the Supreme Court of Missouri 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 judg- ment when determing 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 allege and prove that their official action was knowingly wrongful, malicious or corrupt, in order to hold them liable in damages therefor. § 295. The duties of election officers are generally clearly defined by statute, particularly as to the manner of conducting the election and of determining disputed ques- tions as to the right of individuals to vote. In some of the States if the voter will make an affidavit, the form or sub- 1 [The same rule obtains in Washington and North Dakota. Isaacs V. McNeil, 44 Fed. Rep., 32; Alden v. Hinton, 6 N. D., 317.] 2 Pike V. Magoun, 44 Mo., 491. 222 BLEOnONS. [chap. IX. stance of which is prescribed, his vote is to be received without further evidence or inquiry. Such is the law of Illinois ;^ and also of j^ew fork.^ 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 excite- ment of an election. For example, the statute of Illinois under which the case of Spragins v. Houghton arose, prescribed the form of the oath to be taken by a voter when challenged and provided that " if the person so offiering 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 ; 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 can not 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 prov- ing 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. > Spragins ». Houghton, 3 111., (2 Scam.) 877 ; 8. C. Bright. Elec. Cas., 163. ' People ©. Pease, 30 Barh., 588. CHAP. IX.] OFFICERS. 223 Thns in State v. Robh^^ 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 refuse the vote, notwithstanding such offer to swear.- The statute of Indiana, under which this case arose, unlike that of Illinois, sujpra, 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 defend- ant, who was an inspector of the election, refused to admin- ister 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. § 2D6.. Subject to the qualification above stated, the gen- eral 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 elec- tion), the voter is made the judge of his own qualifications 1 17 Ind., 536. 2 [United States v. Egan, 30 Fed. Rep., 498.] »[Wolcott V. Holcomb, 97 Mich., 361.] 224: ELECTIONS. [OHAP. IX. and liis conscience, for the occasion, takes the place of every other tribunal. If there is any doubt as to the voter's qual- ifications, 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 admin- ister to him the general oath in which he afiirms the posses- sion in himself of all the legal qualifications, and if he takes 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.* § 2'9Y. In Bacon v. Benchley,^ 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 ap- plication. It further appeared, however, that afterward, and before the close of their session, the selectmen reconsidered 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 the 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 revis- ing. The Court was of opinion that the defendants did seasonably place the plaintiff's name on the list. § 298. We have already seen, that according to the de- cisions in Massachusetts, it is incumbent upon a person offering to vote to furnish to the selectmen suflScient evi- dence of his having the legal qualifications of a voter. It ieems that where a voter, before offering his vote, makes » People V. Pease, 80 Barb., 588; S. C, 27 N. T., 4S. • 2 CuBh., 100. CHAP. IX.J OFFICEKS. 225 statements not under oath, to the selectmen, relating to his residence, in an action against such selectmen for refusing his vote, the plaintiff may prove that he made such state- ments, and what they were.* But it would doubtless be otherwise if the plaintiff had been requested by the select- men 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, can not be overlooked or disregarded, but the party must, if required, make oath to his statement. § 299. Where an officer of election has decided a diffi- cult and doubtful question against the right of a person claiming a vote, he will be deemed, until the contrary ap- pears, to have acted without malice, even though his decision may have been erroneous. Thus, in New York, the inspect- ors 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 Con- gress, deserters were rendered incapable of exercising the rights of citizens. In a suit against these inspectors for refusing 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 de- serters who had been properly convicted as such.^ § 300. And it was held in Goetchens v. Matthewson that in an action for damages against judges for corruptly refus- ing 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 > Lombard v. Oliver, 7 Allen, 155. 2 Goetchens v. Matthewson, 5 Lans., N. T., 214. As to what will amount to an unreasonable refusal by election oflQcera to receive the vote of a qualified elector, see Sanders v. Getchell, 76 Me., 158; Pierce v. Getch- ell, Id., 216; [Hannon v. Grizzard, 96 N. C, 293]. 15 226 ELECTIONS. [chap. IX. 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 right of a political opponent to vote except in the clearest case. It would destroy that independence that is requisite to judicial fairness. § 301 . If a registered voter tenders his vote at an elec- tion, and the judges willfully, corruptly and fraudulently re- fuse to receive it, he is entitled to recover in an action against them, such exemplary damages as the jury may con- sider proper under the circumstances. ^ But in no case can a party recover exemplary damages unless willful and cor- rupt action on the part of the ofhcers 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 the de- fendant, as register, had permitted another person, known to hold the same disloyal sentiments, to be registered as a voter. This was admitted as tending to show malice as against the plaintiff.* » Elbin V. Wilson, 33 Md., 135. • In determining the actual and not vindictive damages of a party in- jured by the making and returning of a false abstract of votes by the county clerk, the good faith and honest intentions of the latter are no protection to him or to the sureties on his official bond for such breach of official duty. Thomas v. Hinkle, 85 Ark., 450. CHAPTER X. OF THE PRIMA FACIE RIGHT TO AN OFFICE. § 302. Importance of the subject 302. The person holding ordinary credentials presumed elected and allowed to act pending contest. 303. Credentials, form of. 304. Certificate of majority of certifying board sufficient. 305. Credentials of members of Congress. 306. Who may issue. ■^ » 306-308. Certificate of election confers vested right, but does not oust jurisdiction of proper tribunal. 306a. The rule in North Carolina. 307. Power of Governor to revoke commission. 309-313. Power of Lower House of Congress when no certificate has been issued to either claimant. 814 Effect of certificate showing only partial canvasa 315, 816. Certificate of election cannot be collaterally attacked. 817. Courts of equity will not interfere with contested election case. 818-321. Further discussion as to effect of certificate of election. § 302. 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 deter- mine 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 228 ELECTIONS. [chap. X. an evil disposed person, to 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 of 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 merits.^ § 303. '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 1 [In the case of Chalmers v. Manning, the contestee in his answer to the notice of contest stated that he would not take his seat in Congress nor ask to have his name enrolled as a member thereof until his right thereto had been vindicated. Acting in accordance with this state- ment he failed to present his certificate of election to the clerk prior to the organization of the House, but subsequently caused his certificate, which was in due form, to be presented, and claimed his right to be sworn in as a member pending the contest Because of Mr. Manning's admissions and refusal to present his certificate, the House of Repre- sentatives refused to seat him upon his prima facie title, and his district remained tmrepresented throughout the contest. Chalmers v. Mauning,^ Mob., 7.] CHAP. X.J EIGHT TO AN OFFICE. 229 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.^ § 304. 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 such judges, based upon a full canvass of the vote, is prima fade sufficient. The re- fusal of the fifth judge to join in the certificate will not in- validate it.' § 305. In the absence of any express provision of law authorizing any officer to certify to 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 suffi- cient credentials.' § 306. It is enough for a prima facie case if the certifi- cate 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 de- claring the result.* In Kerr v. Trego^ it is held that the certificate of election sanctioned by law or usage is prima facie 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 sub- ject is referred. iPosf, §314 ^Coflroth V. Koontz, 2 Bart., 25. 8 W. T. Clark's Case, 42d Congress [Smith, 6], 4Id. »47Pa.St,39aL 230 ELECTIONS. [chap. X. [§ 306a. It has been held in North Carolina that while the result of a vote for a county office is conclusively set- tled, so far as the county commissioners are concerned, by the certificate of the board of canvassers, still, if the com- missioners rightly refuse to administer the oath of office to one elected but ineligible to the office, a court will not com- pel them to do so.' And it has been held in a later case in the same State that where county commissioners, prompted by the protests of a considerable number of electors, and after honest and diligent examination of facts, have refused to induct a claim- ant into an office to which he has been elected, on the ground that he is disqualified, they will not be held liable to such claimant in damages, although he is in fact eligible to the office.^] § 307. 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 Grovernor to recall. It was accordingly held in Ewing v. Thompson,^ 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 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 comjnission issued by him 1 [Worthy v. Barrett, 63 N. C, 199.] « [Hannon v. Grizzard, 96 N. C, 293.] •43 Pa. St, 372. CHAI. i.] EIGHT TO AN OFFICE. 281 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."* No doubt the appointing officer may reconsider his action in the matter of making an appointment at any time before the appointment is complete; but the appointment, when fully executed by the performance of the last act made necessary in its execution, is not revocable without the consent of the appointee. 8 § 308. 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 com- petent 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.'' § 309. In the case of Morton v. Daily ^^ there were two certificates of election issued 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 1 And see the important case of Marbury v. Madison, 1 Cranch, 137. 2 State V. Van Buskirk, 4 N. J. L., 463. 3 [Dean v. Field, 1 Ells., 190.] * Upon the subject of the effect of a commission, see Ewing v. Filley, 43 Pa. St., 384; State v. Johnson, 17 Ark., 407; Hunter v. Chandler, 45 Mo., 452. 6 1 Bart, 403. 232 ELECTIONS. [chap. X. he was able, the first. The House allowed the holder of the last certificate to be sworn in, and to occupy the seat pend- ing 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, deter- mine 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 ab- sence 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 oflBcer, but belongs exclusively to such judicial or qiiasi judicial tribunal, as the law may designate for that purpose.* § 310. The case of Morton v. Daily, sujpra, was followed by the House in Hoge v. Reed.^ But it must have been without dae consideration, for the same House held the con- trary doctrine in Wallace v. Siinjpson.^ 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 Forty-first 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 representa- tive, 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 de- » Switzler v. Dyer, 2 Bart, 777 ; State «, Rodman, Sec'y of State, 43 Mo., 256; State v. Steers, 44 Mo., 228-228; Switzler o. Anderson, 2 Bart., 874. » 2 Bart., 540. » 2 Bart., 552. CHAF. "JLJ ■ EIGHT TO AN OFFICE. 233 daring 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 the minority report, which decided the jprima facie case against Mr. Wallace. This decision of the House ap- pears 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 ^ima facie case. 2. That the subsequent statement was an unauthorized and unofiicial paper of no value as evidence, 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 de- cisions, as well as by frequent decisions of the House of Representatives itself. § 311. In the case of Sheaf e v. Tillman,'^ a like qnes- tion was again considered, and the sound rule that a minis- terial or executive officer can exercise no judicial functions, was adhered to. In the report in that case the doctrine is laid down as follows:* " There is no law of the State of Tennessee that gives authority to the Governor to reject the vote of any county » 2 Bart., 907. « P. 910. 234 - ELECTIONS. TCHAP. X. 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 Repre- sentative to Congress."* 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 House must the party deeming him- self aggrieved, look for redress. This great power of deter- mining 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. ^ 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. § 312. 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 document- ary evidence as it has been able to bring before it, without delay, to decide the prima fade claim, and order one or the other to be sworn in, pending the contest.' § 313. Of course the House must, in each case of thi& » Code of Tennessee, Sec. 935, page 239. « Constitution United States, Art. 1, Sec. 5. » CoflEroth V. Koontz, 2 Bart., 25 ; Foster v. Covode, Id. 519. CHAP. X.] RIGHT TO AN OFFIOB. 285 character, judge whether there is before it sufficient prima facie evidence of the election of either one of the claimants; but as a general rule, it is believed 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 prima facie 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 in- quiry into its effect. But if there is no record or other docu- mentary 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 de- cide the prima facie case, it will generally find that it can not stop short of hearing all the evidence and deciding upon the merits. § 314. It is to be observed in this connection that while in determining the prima facie right to a seat, the House of Representatives will not look behind the certificate, if it be signed by the proper ofiicers, and if it contains a state- ment 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 prima fade evidence. 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 inquire what the vote was in the county omitted. 1 And if it appear that the vote of the county omitted would have changed the result, the value of such a 236 ELECTIONS. [chap. X. certificate is destroyed. But if it appear that the vote of the omitted county was not material to the result, then ac- cording to the ruling of the House in C off roth v. Koonts,^ the certificate is good, although based only upon the four coun- ties 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 certifi- cate, if admitted. § 61^, 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 Jersey CaseJ* 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 re- spective 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 certificates were admitted to seats pending the contest, and at the 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 since when the question has arisen. § 316. The efiect 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 » 2 Bart., 25. « 1 Bart., 19. CHAP. X.1 KIGHT TO AN OFFICB. . 237 York that the law having committed to the common council of a city, the duty of canvassing the returns and determin- ing from them the result of the election for mayor, and the council having performed that dnty, and made a determina- tion, the question as to the ejffect 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 Denio, «/., " the question had arisen upon an action in the nature of a quo warranto information, the evidence would have been compe- tent," and the evidence referred to was that offered to im- peach 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 be- hind the official determination to prove that such official determination arose out of mistake or fraud.* The true rule is, that the certificate of the board of canvassers declar- ing the result of the election is, in a controversy arising be- tween the party 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. 3 § 317. The merits of a contested election can not 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 v. Rems,^ which was a petition for an injunction upon this »Hadleyt). City of Albany, 33 N". T., 603. And see also Peyton «. Brent, 3 Or. C. C, 424; Hunter v. Chandler, 45 Mo., 453. =" See People v. Cook, 8 N. Y., 67; People v. Vail, 20 Wend., 13; Peo- ple V. Jones, 30 Cal., 50; Commonwealtli «. Oo. Commissioners, 5 Bawle> 75. » 41 Pa. St., 398. 238 ELECTIONS. [chap. X. 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 can not frustrate it by any decree of ours without an act of usurpation. Another tribunal is ap- pointed 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." ^ There can be no doubt but that a certificate of election regular in form, and signed by the proper authority, constitutes prima facie evidence of title to the office, which can only be set aside by such proceedings for contesting the election as the law pro- vides.* The certificate whether rightfully or wrongfully given, confers upon the person holding it, the prima facie right to the office.' If, however, the certificate contains upon its face a recital of facts, and these facts show affirma- tively that the party holding it was not duly elected, it may be disregarded.* § 318. 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 ib priina facie evidence of his election and the only evidence thereof which can be considered in the first instance, and in the course of the or- ganization of a legislative body. But there are questions which may be raised, touching the qualifications of a person » And see Moulton v. Reid, 54 Ala., 320. » Commonwealth o. Baxter, 35 Pa. St., 263; Kerr «. Trego, 47 Pa. St, 292; State -o. The Governor, 1 Dutch (N. J.), 331. « People c. Miller, 16 Mich., 56; Crowell -o. Lambert, 10 Minn., 369; State «. Sherwood, 15 Minn., 221 ; State «. Churchill, Id., 455. * Hartt t. Harvey, 32 Barb., 55, 61. CHAP. X.} EIGHT TO AN OFFICE. 239 elected, which may be investigated arid decided as a part of the prima facie case, and as prellaiinary to the swearing in of the claimant. Thus, if a specific and apparently well grounded allegation be presented to the House of Rej)resent- atives of the United States, that a person holding a certifi- cate of election is not a citizen of the United States, or is not of the requisite age, or is for any other cause inelligible, the House will defer action upon the question of swearing in such person, until there can 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 usu- ally made, or vouched for at least, by some member or mem- ber elect of the House. It is to be presented at the earl- iest possible moment after the meeting of the House for organization, and generally at the time that the person ob- jected 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 be- ing, and the House through its committee with all possi- ble speed proceeds to inquire into the facts. § S19'. 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 can not be attacked except in the ordinary mode pro- vided for contesting; but it is not evidence of the qualijlca- tions 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 240 ELECTiONg. [CHAP. X. certificate of election does not add to this presumption, but simply leaves it where the law places it, and he who denies the eligibility of a person who is certified to be elected, mnst take the burthen of proving that he is not eligible. Dur- ing 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,^ this was the ruling of the House. The doctrine was thus stated in the commit- tee'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 member of this House, and that any specific and well-grounded 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 per- mitted to take the seat; but all charges touching the dis- loyalty 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." § 320. The case of Hunt v. Chilcott^ is one of the very few cases in which a certificate of election signed by the proper authority, has been held insuflBcient to entitle the holder to be sworn in a member of the House of Representa- 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 oflFered evidence which impeached it. The committee said in their report: » 2 Bart. 33" « 2 Bart., 164. CHAP. X.] EIGHT TO AN OFFICE. 241 "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 iu his presence, by the board of canvassers; that two of said board found that a maiority of all the votes had been cast for George M. Chilcott, and that one of said board dis- sented from this conclusion, and that he, the governor, con- sidering 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 certifi- cate 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, prima facie, to a seat as delegate." While, therefore, it was conceded that the House should not insist upon looking beyond the certificate in determining & prima fade case, it was held that if the party holding the certificate saw fit to ofifer evidence in addition to the certifi- cate, the House might take notice of it. § 321. While it is true, as we have seen, that where a certificate of election is confined to a statement that the per- son 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 ofiice, it is also true that where it recites the facts, 16 24:2 ELECTIONS. [chap. X. 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 de- stroys itself.^ 1 H«rtt V. HarT«7, 82 Barlx, 65. CHAPTER XI. OF ELIGIBILITY TO OFFICE, AND OF TENURE. 322. Qualifications for Federal offices. 323. 323. Qualifications for State offices. 324 Qualifications of Representatives in Congresa 324. Meaning of the term " inhabitant " as used in the United States Ck)nstitution- 325. Residing abroad as representative of the Government of the United States. 326. A State has no power to fix qualifications of Representatives in Congress. 327-331. Effect of votes cast for ineligible candidate. 331a. Effect of votes cast for a candidate dying on day of election* 328. The English rule. 328-330. Not generally adopted in this country. 331. Decision of United States Senate. 332. Effect of conviction for crime. 333. Effect of an offer by candidate for office in the nature of a bribe, 334. Effect of absence while engaged in discharge of duties of public office. 335. Holding an incompatible office. 335, 336. Incompatibility defined. 337. Holding an office under the United States. 338. Effect of acceptance of commission in military service upon tenure of member of Congress. 338, 339. Effect of same in case of member of Congress elected but not sworn in. 339a. An attorney retained in a particular case by the Attorney Gen< eral of the United States not an officer of the United State* 340. Acceptance of incompatible office equivalent to resignation. 340a. Effect of being a candidate for two incompatible offices at same election. 341. Lucrative office. 342. Character of residence required. 843. Election of alien to United States Senate entirely void. 344. Dueling under Constitution of Kentucky. 344, 345. Conviction necessary. 346. Citizenship necessary whether expressly so provided or nob 347. Legislature cannot add to constitutional qualificationa 244 ELECTIONS. [chap. XT. § 348. Abandonment of an oflSce. 849-351. Holding over until successor is chosen and qualified. 852. Resignation, acceptance not necessary. 853. Tenure during good behavior. 354 Right to hearing before removal. 854. Commission of crime does not ipso facto vacate office. 855. Power of removal 856-358. When judicial declaration of vacancy is necessary. 359. Vacancy cannot be anticipated. 360. Vacancy in office of United States Senator. 861. Filling such vacancy by executive appointment. 862. Member of Congress may resign without notice to the House. 863. Declaration of vacancy by Governor. 864. Vacancies that may happen "during recess of the Senate." 864, Discussion as to construction of Article 2, Section 2, Clause 2, Constitution of the United States. 865. Power to fill vacancies generally. 365. Construction of Article 1, Section 3, United States Constitution. 366. In what cases Legislature may fill offices. 867. Right of incumbent to fees and emoluments. 868. In this country appointment or election creates no contract for any particular period. § 322. The qualifications for Federal offices are fixed by the Federal Constitution or Federal law, and the qualifica- tions 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 qual- ifications for a State office, as fixed by State regulations. § 323. The Constitution of the United States fixes the qualifications of Eepresentatives in Congress in the following words: " No person shall be a Eepresentative 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." ^ A State law requiring that a Eepresentative in 1 Constitution, Art. 1, Sec. 2. [The record of a court admitting a per- son to citizenship is conclusive upon Congress in a contested election, and cannot be questioned collaterally. Cannon v. Campbell, 2 Ells., 604.] CHAP. XI.] ELIGIBILITY. 245 Congress shall reside in a particular town and county within the district from which he is chosen is unconstitutional and void.^ § 324. It will be seen by reference to the Constitution of the United States, Article 1, Sections 2 and 3, that no per- son can be a Eepresentative " 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 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 jide residence of the Eepresentative among the constituency — a residence in the sense of actual living among them and com- mingling with them, — and therefore employed the term " in- habitant " 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 Repre- sentatives, in 1824, in case of John Bailey of Massachusetts, who was elected a Eepresentative 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 dis- charge of his official duties. He was held not entitled to the seat.'' 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 bona fide a member of the State, subject to all the requisitions of its laws, and entitled to all the privileges and advantages which they confer. § 325. The case of one who is abroad, representing the government at a foreign Court, was held to be different from 1 Barney v. McCreery, CI. & H., 167, 169. 2 Electors n Bailey, CI. & H., 411. 246 ELECTIONS. [chap. XI. that of a person employed in the domestic service of the government, out of the limits 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 alle- giance to the country from which he comes. Kone 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 John Forsyth of Georgia,^ 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. § 326. 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 ofiice (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 members of Congress, was void, because in conflict with the Federal Constitution, and also because it was an unauthor- ized 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 Rep- resentatives in the Thirty-fourth Congress. They had pre- viously been elected, respectively, judge of the Supreme and Circuit Court of that State, for terms which had not expired. lCa.&H.,497. CHAP. XI.] ELIGIBIUTT. 347 This was held to be no objection to their holding the ofBce of Representative in Congress.^ The United States Senate adopted the same rule in Trumbull's case.'^ § 327. 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 re- ceived 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 no- tice 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 Tcnown incom- petency." * 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 suffi- cient 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. Some of the principal English authorities upon the subject are cited in the note.' iTurney v. Marshall, 1 Bart, 167; Fouke v. Trumbull, 1 Bart, 167; [Wood V. Peters, Mob., 79]. 21 Bart., 619. 3 Where the candidate receiving the majority is ineligible for a cause not known to the voters, there must be a new election. Dry den v. Swinburne, 20 W. Va., 89; Swepston u Barton, 39 Ark, 549. * South wark on Elections, p. 259. 6 Rex V. Monday, Cowp., 537; Rex v. Coe, Hey wood, 361 ; Rex v. Bissell, Id., 360; Rex u Parry, 14 East, 549; Regina v. Coaks, 28 Eng. L. and Eq., 804; S. C, 7 Q. B., 406; Hey wood on County Elections, 535; Male on 248 ELECTIONS. [chap. XI. § 328. 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 v. Brown^ in which, in an able report, submitted by Mr. Dawes, chairman of the Com- mittee of Elections, 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 gener- ally take the same view. § 329. Thus, in Commonwealth v. Cluley^ 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 v. Haynes^ holds the same doctrine and enforces it, by cogent reasoning. And in Wisconsin we have the same ruling in State v, Giles*' and in State v. Smith; * and see Opinion of Judges,^ State V. Boal^ State v. Yail^ State v. Anderson^ People v. Glute^^ [and In re Corliss'}}^ But in Indiana the doctrine of the English authorities has been followed,^^ in Carson v. Mc- Elections, 336; King v. Hawkins, 10 East, 210; Claridge v. Evelyn, 5 B. & A., 8; Clarke on Election Committees, p. 156; South wark on Eleo tions, p. 259. 1 2 Bart., 395. [And see, also, Cannon v. Campbell, 2 Ells., 604] 2 56 Pa. St., 270. » 13 Cal., 145. * 1 Chand., 113. s 14 Wis., 497. 6 32 Maine, 597. 7 46 Mo., 528. 8 53 Mo., 97; Cushing, Elec. Caa, 496, 678, » 1 Coxe (N. J.), 3ia 10 50N. Y.,45. " [11 R L, 638.] WGulick V. New, 14 Ind., 93L €HAP. XI.] ELIGIBILITY. 249 Phetridge^ Price v. Baker ^ [and Coj>e v. State ;Y and see Stewart v. Hoges, in Circuit Court of Stephenson County, Illinois.* § 330. 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 sub- mit 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."^ § 331. This question was elaborately discussed and set- tled, so far as the Senate of the United States is concerned, in the case of Joseph C. Abbott, of ISTorth Carolina. The decision of that case was against the adoption of the Eng- lish 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 asserted, in the report of the committee, that the fact that the voters have notice of the ineligibility of the candidate at the time they cast their votes for him makes no difference. The re- mark of Judge Strong, in Commonwealth v. Cluleij^ that 1 15 Ind., 327. 2 41Ind., 572. « [126 Ind., 51.] *3 Chicago Legal News, 117. 5[Lowry v. White, Mob., 62a] * Supra. 250 ELECTIONS. [chap. XI. " the disqualified person is a j>erson stilly 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 minor- ity of the committee, submitted an elaborate report main- taining the right of Mr. Abbott to the seat, and the debate was exhaustive, but the Senate sustained the majority of the committee.* [§ 331a. The Supreme Court of Kentucky in Howes v. Perry "^ applied this rule to the following case: The appel- lant and one Bayes were candidates for the same office. Bayes died on the afternoon of the election before the polls had closed. The count showed that Bayes had received a majority of the votes cast, but it was impossible to deter- mine how many votes had been cast for him at the time of his death. The Court in passing upon appellant's claim to the office held that he was not the choice of a majority of the qualified voters who had cast their votes in good faith at the election and that he was not entitled to a certificate of election.] § 332. The Supreme Court of Pennsylvania has held that the trial and conviction of a sheriff of the offense of bribing a voter, previously to his election, does not constitutionally disqualify him from exercising the duties of his office, be- cause it is not a conviction of " any infomious crime," within the meaning of the Constitution of that State.^ In the opinion in this case will be found an elaborate discussion of the meaning of the term "infamous crime," and a refer- ence to many authorities upon that subject. It was held that infamous crimes are treason, felony, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, etc.* J Senate Rep. No. 58, 42d Congress, Second Session. 2 [92 Ky., 260.] 3 Commonwealth v. Shaver, 3 W. & S., 388; S. C, Bright. Elec. Gas., 134 < See ante, §§ 108-111. [In the opinion of the Supreme Court of the CHAP. XI,] ELIGIBILITY. 251 § 333. While it is now well settled that an offer by a candidate for office to discharge the duties for less than the lawful salary or compensation is in the nature of a bribe, and vitiates all the votes influenced by such offer, yet it has been held that the person making the offer is not thereby rendered ineligible to hold the office in the absence of a con- stitutional or statutory provision declaring such ineligibil- ity.* It was therefore held that, in order to oust the in- cumbent of an office on this ground, it was necessary to show that the number of votes in his favor cast under the influence of such promise was greater than the majority re- ceived by him. The rule that a disqualification to hold office on account of having committed an offense against the law, or public morals, must be declared by constitutional or statutory provision is believed to be well settled. In Eng- land, and in many of the States of the Union, it is expressly provided by law that bribery in procuring an office creates a disability to hold it. Such is the case especially in Iowa, in Kansas, in Oregon and in Wisconsin, and this fact should be kept in view in considering decisions based upon the laws of those States, some of which have been referred to.^ § 334. The acceptance for a term of years of an office, the duties of which require the incumbent to reside outside the limits of a given place, does not necessarily render him United States an infamous crime is one which subjects the offender to an infamous punishment, as, for example, imprisonment in the peniten- tiary. Ex parte Wilson, 114 U. S., 417; Mackin v. United States, 117 U. S., 348,] 1 People V. Thornton, 25 Hun (N. Y.), 456. 2 Upon the general subject of selling offices and of the bidding for offices see the following cases: Hall v. Gavitt, 18 Ind„ 390; Carrothers v. Russell, 63 Iowa, 346; State v. Purdy, 36 Wis., 313; Walsh v. The People, 66 111., 58; State v. Dustin, 5 Oreg., 375; State v. Collier, 73 Mo., 12; S. C, 18 Am, Law Reg. (N. S.), 768; State v. Stevens, 33 Kan., 456; Tucker v. Aiken, 7 N. H., 113; Carleton v. Whitcher, 5 Id., 196; Meredith v. Ladd, 3 Id,, 517; Alvord v. Collin, 20 Pick., 418; King v. Plympton, 2 Lord Raym., 1377; Rex v. Vaugh, 4 Burr., 2494; Waldo v. Martin, 2 Carr. & Payne, 1. 253 ELECTIONS. [chap. XI. ineligible to another office, one of the qualifications of which is residence within such place. If the office accepted is for life, the law presume that upon its acceptance the incum- bent 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 intended, and none of the rights or privileges of his residence are lost by the accept- ance of it.* § 335. Whether the incumbent of one office becomes dis- qualified 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 in- compatible. The incompatibility between two offices which upon the acceptance of the one by the incumbent of the other operates to vacate the latter is not simply the physical impossibility to discharge the duties of both offices at the same time ; but it is an inconsistency of the functions of the two offices, as where one is subordinate to the other, or where a contrariety 1 Commonwealth v. Jones, 12 Pa. St., 365. 2 [United States v. Saunders, 120 U. S., 126. An act of the Legislature making it the duty of a sheriff of a certain county to discharge the du- ties of city marshal in a certain town is not obnoxious to a clause of the Constitution which provides that " no person shall hold or perform the functions of more than one office under the government of the State at the same time." Attorney-General v. Connors, 27 Fla., 329. By the laws of the State of New Hampshire the oflSces of selectman and collector of taxes are incompatible. It has been held in that State that a collector of taxes of a previous year who has not completed the col- lection of taxes on his list, nor been discharged from liability to the town as collector, is within the prohibition and disqualified to hold the office of selectman. Attorney-General v. Marston, 66 N. H., 485. But in North Carolina there is a decision " that where the statute imposes certain duties to be performed by an officer after the expiration of the term of office, their performance does not constitute a place or office of trust or profit so as to disqualify the former officer from holding another office at the same time." State v. Somers, 96 N. C, 467.] CHAP. XI.] ELIGIBILITY. 253 and antagonism would result from the attempt of one person to faithfully and impartially discharge the duties of both.^ § 336. If there is a statutory or constitutional provision prohibiting the same person from holding both offices at the same time, then of course the question of their incompati- bility does not necessarily arise ; ^ for in such a case the ac- ceptance of the second is ipso facto 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 de- pends upon their compatibility.* § 337. The sixth section of the first article of the Consti- tution 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 United States 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.* While it is true that the com- missions of officers of volunteers are ordinarily issued b}'- the State authorities, it does not follow that they are State offi- cers. 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 faith- ful performance of their duties. These tests show them to be officers of the United States. § 338. 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 1 People V. Green, 58 N. Y., 296. 2 [Adam v. Mengel (Pa.), 8 Atl. Rep., 606.] 3 [State V. Goff, 15 R L, 505.] *Case of Van Ness, CI. «& H., 132; Cases of Baker and Yell, 1 Bart, 92; Byington v, Vandever, Id., 395; Stanton v. Lane, Id., 637. 254 ELECTIONS. [chap. XI. Robert C. Schenck, of Ohio, this identical question arose in the House of Representatives of the thirty-eighth Congress, In that case it was held that if a "member of Congress, after he has qualified 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, ijpso facto, 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 Con- gress in December, 1863, and did no act as a Representative in Congress and indicated no acceptance of it, until after his resignation as Major General, nor until the meeting of Con- grese at the time above named. § 339. 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 organised, 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 Con- gress, and after the legal existence or constitutional term of that Congress commenced, to- wit, March 4, 1863; they were unlike in this: Gen. 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 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, CHAP. XI.] ELIGIBILITY. 255 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.* 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 Massachusetts. * 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 appoint- ment or election to an office, the duties of which are incom- patible with those of one already held, will not vacate such office. This is true even in England, where the appointment to office can not always be avoided, and where once assumed it can not, as we have seen, be always voluntarily resigned by the incumbent.' And in this country, where the accept- ance 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 incumbent is free to choose in which of the two offices he will serve. He can not 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, can not 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.* So that consent and acceptance create the vacancy. And Willcock, in his Treatise upon Municipal Corporations, 1 Hammond v. Herreck, CI. & H., 287 ; Case of Elias Earle, Id., 814. » Report No. 110, 1st Sess. Thirty-eighth Congress. » "Willcock on Mun. Corp., 243, 248. * Dyer, 332, 6, in the notes. 256 ELECTIONS, [chap. XI. before cited, states that the election of an officer to an incompatible office does not vacate the former before accept- ance by the officer. * In this country, Angel and Ames in their work on Corporations^^ adopt this same language, and incorporate it into the text of their treatise. In Whitney v. Canique, before cited, ^ 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. Gushing, in his Law and Practice of Legislative Assemhlies,^ lays down the same rule, in stating a case which is the con- verse of the one involved in this reference. He says: ' It may be considered as a rule founded in the reason of tlie thing, and corresponding with the practice, as far as it is known, of all our legislative assemblies, that in order to vacatt the seat of a member by the acceptance of the disqualifying or incompatible office, the election or appoint- ment 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 »P.243. • Sec. 434. » 2 Hill, 9i * Sec. 479. CHAP. XI.] ELIGIBILITT. 267 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 Tnembers;^ 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 Tnembers for disorderly behavior, and with the concurrence of two-thirds, expel a member.^ The committee are not aware of any attempt to punish a repre- sentative elect, and of but one instauce 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 oifice, or qualified, or even appeared in Washington for the purpose of taking his seat. But when the Constitution uses the word ^ rejpresentatvce^ it is in this connection: 'The times, places, and manner of holding elections of Senators and Rejpresenta- tiveSj shall be,' etc. ' 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 ofiice 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 influ- ence. 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 enter- 258 ELEOTIONB. [OHAP. XI. ing upon the discharge of the duties of an office, which, from the nature of its duties, or from express legal or constitu- tional 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. "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 discharge of the duties of ' any office under the United States,* he, ipso factOy 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, Kovember 29, 1862, the duties of which latter office he dis- charged till January 1, 1864, when he tendered his resigna- tion, 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 Mon- day of December, 1863. It therefore appears that Mr. Blair held and discharged 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 the resignation of the former, then does it not follow that the continuance in the discharge of the duties of the former office, after the time at which the law requires the CHAP. XI.] ELIGIBILITT. 259 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 can not 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 diffisrence 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 can not 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, ipso facto ^ cease as the result of his choice. If he determines to continue to hold the former, does he not of necessity de- cline 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 interpreta- tion 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 election on his part, then that election is yet to be made; and what interposes to re- quire 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 can not 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 260 ELECTIONS. [chap. XI. 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 con- tinuing 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. [§ 339a. In the case of Massey v. Wise^ it was held that an attorney who is employed or retained by the Attorney- General of the United States to assist in a given case or cases, and for a compensation to be fixed by the Attorney- General, does not hold an office within the meaning of Arti- cle 1, Section 6, of the Constitution, and is not disqualified on that account from holding the office of Representative in Congress.] § 340. 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 re- signed the former.^ 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 neces- sary in any such case. Acceptance by an officer of a second and incompatible office i^pso facto vacates the first office, and no proceedings to declare a vacancy are necessary.' [§ 340a. The rule which disqualifies one from holding two incompatible offices at the same time does not prohibit a person from becoming a candidate or being voted for, for two incompatible offices at the same election. Should he be 1 [Mobi, 365.] a Case of George Mumf ord, CL & H., 316L 8SheU V. Cousins, 77 Va., 328; State v. Dell wood, 88 La. Annu, 1229^ State V. West, Id,, 1261. CHAP. XI.] ELIGIBILITY. 261 elected to but one of the offices for which he was a candi- date, the votes electing him would not be invalid because another portion of the voters saw fit to vote for him for the other. If elected to both offices he would be compelled to elect which he would accept.^] § 341. The office of councilman in a city is not a lucra- tive office, within the meaning of a constitutional provision which provides that no person shall hold more than one lucrative office at the same time.^ § 342. 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 person elected has resided in the State for the time required, it is not essential that he shall have 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, etc., at the time he offers to vote, or is to be voted for," ' § 343. The Constitution, Article 1, Section 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 inhab- itant 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.* § 344. 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 1 [Misch V. Russell, 136 111., 33.] 2 State V. Montgomery, 25 La. Ann., 138, »Biddel v. Richard, CL & H., 407. *Case of James Shields, 1 Bart., 606. 262 ELECTIONS. [chap. XI. a challenge to any person or persons to fight in single com- bat Avith 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 Gen- eral 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.'* 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 pun- ishment as may be prescribed by law ; that the disqualifica- tion and the offense against the laws are separate subjects ; and that the contested election board has jurisdiction to de- cide the former, without reference to the latter. This decis- ion is based upon the theory that the Constitution does not declare the giving, accepting or carrying a challenge a penal offense: that it does not make these acts crimes, but simply prescribes as among the qualifications for office that per- sons who have so acted shall not be eligible. This view of the effect of the constitutional provision was, however, expressly overruled by the Court of Appeals of Kentucky, in the case of CortiTnonwealih v. Jones^ and it was there held that the provision was not self-executing, except so far as it prevents those who cannot or will not take the requisite oath from entering upon office. It has no other effect until after trial and conviction in the course of a regu- lar judicial proceeding. The disqualification imposed is a punishment. It in fact deprives the citizen of a most valu- able right, and one which has been classed as inalienable by J CJochran v. Jones, 14 Am. Law Reg. (N. S.), 222. 2 10 Bush (Ky.), 725; & C, 14 Am. Law Reg. (N. S.), 374. CHAP. XI.] ELIGIBILITY. 263 the Supreme Court of the United States.^ If held to be self-executing, it would authorize the trial of a citizen with- out accusation, his condemnation without proof or opportu- nity for defense, and his punishment without notice or a hearing. § 345. It may be stated as a well-settled proposition, that statutes and constitutional provisions making ineligible to oiBce any persons who have been guilty of a crime or breach of trust, always presupposes that the fact of the commission of such a crime or breach of trust has been ascertained and adjudged by the judgment of a court of competent jurisdic- tion. Such a fact can only be established by trial and judg- ment in due course of law, in which the accused shall be entitled to a full and fair hearing.* § 346. As we have seen, the question of eligibility to be elected to or to hold an office is generally to be determined by the construction of some statutory or constitutional pro- vision 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 Avhether an alien may be elected to or hold office. In State v. Srnith,^ 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 inten- tion to become a citizen. Up to the time of the commence- ment 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 per- son cannot lawfully hold such an office unless he is a qualified elector of the State. The Court, by Dixon, C. J., said : " It 1 Cummings v. State of Missouri, 4 WalL, 277. 2 Cawley v. People, 95 lU., 249. » 14 Wis., 497. 264 ELECTIONS. [chap. XI. is an acknowledged principle, which lies at the very founda- tion, and the enforcement of which needs neither the aid of statutory nor 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 pow- ers and functions exercised only by them and through their agency." This case, however, went no farther 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 oflBce. It left open the question whether a person not an elector may, in the absence of such statutory or con- stitutional provision, be elected to an office, and be entitled to enter upon and discharge its duties, provided his disabil- ity 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 v. Mur- ray^ and was decided affirmatively. In this case the dis- tinction is clearly made between ineligibility to hold an office and ineligibility to be elected to an office for a term to com- mence in the future, and for the duties of which the person chosen may qualify himself before the term 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. [The contrary rule has been adopted by the Su- preme Court of Minnesota, which holds that where one is ineligible to an office at the time of his election, he cannot hold the office, even though, after being so elected and be- fore the official term begins, the disqualification is removed.^] § 347. Where the Constitution prescribes the qualifica- tions 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 Common- 128 Wis., 96. 2 [State V. Sullivan, 45 Minn., 309.] CHAP. XI.] ELIGIBILITY. 265 wealth at large shall reside within the State, and all district, county or town oflScers within their respective districts," it was not competent for the Legislature to require the Secre- tary of State to reside at the seat of government.^ In the same case it was further held that, by the common law, min- isterial 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. § 348. 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 resig- nation.2 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 belonsfs.' § 349. If the official term of a public officer is limited by law or constitutional provision to a given term of years, without the right expressly or impliedly given of holding until his successor is chosen and qualified, then in case of the failure to choose a successor a vacancy must occur which may result in serious public inconvenience and injury. According to the common law public offices were granted by 1 Page V. Hardin, 8 B. Mon., 648. 2 Id. A deputy collector of customs has an absolute right to resign his office, and after his resignation is final it cannot be withdrawn; but a prospective resignation may be withdrawn at anytime before accept- ance, and after acceptance it may be withdrawn, if the authority accept- ing consents, and if no new rights have intervened. Bunting v. Willis, 27 Gratt, 144. And see to the same effect. State v. Hauss, 43 Ind., 105; State V. Boecker, 56 Mo., 17. In the latter case it was held that a resig- nation to take effect in the future could be withdrawn at any time before the date at which it takes effect. [People v. Leonard, 73 CaL, 230.] » Case of Van Ness, CL & H., 122; Cases of Baker and Yell, 1 Bart, 92; Byington v. Vandever, Id., 395; Stanton v. Lane, Id., 637; §§ 337-339. 266 ELECTIONS. [CIIAP. XI. the crown to a man in fee or for life as well as for years.* They were regarded as a species of incorporeal hereditaments, and consisted in a right and corresponding duty to execute a public or private trust. It seems to be clear that at common law a public officer appointed for a term of years possessed no implied right to hold over after the end of his term until his successor should be chosen and qualified.^ But there is both reason and authority to support the proposition that in the United States there is an implied right to hold over unless the contrary appears to be the plain requirement of the statute.' In this country nearly all public offices are held for a brief, limited time, and the term is frequently for only a single year. If the English rule were applied in all its strictness to official tenures here, it might very often happen that vacancies would occur by reason of a failure to elect, or to qualify a successor, or by reason of the death or disability of the person so chosen, or other similar causes.* It is at least clear that an officer holding over pending the election or qualification of a successor will, for the protection of third parties and the public, be regarded as an officer de facto, and his official acts will be upheld on this ground.' The ques- tion here suggested is probably not of very great impor- tance, for the reason that it is believed that in nearly or quite all of the States there are statutory or constitutional provisions to the effect that all public officers shall hold for a specified time and until their successors are duly qual- ified. Such a clause is to be found in the Constitution of Penn- sylvania, and under it the Supreme Court of that State held that where the person elected to an office dies before being- 1 3 Kent's Com., 54. 2 People V. Tieman, 8 Abb. (N. Y.) Pr., 359. » [Bath V. Reed, 78 Me., 276.] *Cordeill v. Frizell, 1 Nev., 130; State v. Wells, 8 Nev., 105; Walker «t Ferrell, 58 Ga., 512. * People V. Tieman, supra; State v. Williams, 5 Wis., 308. OHAP. XI.] ELIGIBILITY. 267 qualified, the previous incumbent holds over.^ In such a case the death of the person elected creates no vacancy. 'Newer having occupied the office, his death made no change in it. Therefore, though the Governor be authorized to fill all vacancies by appointment, he had no power in such a case to appoint. § 350. An officer commissioned to hold oflSce for the term of four years from March 2, 1845, was held to have been in office on that day. The word " from " includes the day of date.2 § 351. 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 constitu- tional term of four years.' § 352. 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 case, does not depend upon the will of the executive, but of the incumbent. It has been held that 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.* This, however, was not the rule at the common law, by which an office was regarded as a burden which the ap- 1 Commonwealth v. Hauley, 9 Pa. St., 513. 2 Batesville Institute v. Kauffman, 18 Wall., 151. 3 People V. Roseborough, 14 Cal., 180. * People V. Porter, 6 Cal., 26. See, also. United States v. Wright, 1 McLean's Reports, 512; Gates v. Delaware County, 12 la., 405; State v. Clark, 3 Nev., 566; State v. Fitts, 49 Ala., 402; Bunting v. Willis, 27 Grat, 144 268 ELECTIONS. [chap. XI. pointee was bound in the interest of good government to bear, and which he was not allowed to lay down without the consent of the appointing power.^ The Supreme Court of the United States has recently said that " In this country, where offices of honor and emolument are commonly more eagerly sought after than shunned, a contrary doctrine with regard to such offices, and in some States with regard to offices in general, may have obtained ; but we must assume that the common-law rule prevails unless the contrary be shown." 2 § 353. 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 govern- ment implies a right to notice, defense and proof, on the part of the officer, and is a judicial question. The exec- utive, therefore, cannot determine that the Secretary of State, or any other officer holding during good behavior, has been guilty of misbehavior and thereupon remove such officer.' § 354. The doctrine of Page v. Hardin * was approved and adopted by the Supreme Court of IS^ew Jersey, in the case of The State v. Prichard.^ 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, vpsofacto^ work such a forfeiture of his office as to make it iKyd, Corp., Chap. 3, Sec. 4; Grant, Corp., pp. 221, 223, 268; 1 Dili, Mun. Corp., Sec. 163; Rex v. Burder, 4 T. R, 778; Van Orsdall tJi. Haz- eard, 3 HiU (N. Y.), 243; State u Ferguson, 31 N. J. L., 107. 2 Edwards u United States, 103 U. S,, 471, 474 And see to the same effect. State v. Clayton, 27 Kan., 442; Rogers v. Sloanaker, 32 Id., 191; [Coleman v. Sands, 87 Va., 689J. ' Page V. Hardin, 8 B. Mon., 648. But see State r. Doherty, 25 La. An., 119, where the power of the executive to decide in such a case, uncon- trolled by any other branch of the government, is maintained. < Sujpra. » [86 N. J. Law, lOlJ; 12 Am. Law Reg. (N. a), p. 614 CHAP. XI.] ELIGIBILITT. 269 vacant. It was determined that in the absence of any stat- ute expressly declaring that such conviction shall create a vacancy in the oifice, it is not within the power of the execu- tive 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 convic- tion 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 an- nexed by statute to the commission of a breach of law can- not warrant the 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 commis- sion of an}'- infamous crime, shall ipso facto work a forfeit- ure of his office, and that the record of such conviction by a court of competent jurisdiction shall be sufficient to author- ize the proper authority to declare and to fill the vacancy. For it is plain that in the absence of such legislation, accord- ing 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 de- prived of the power to do so. 270 ELECTIONS. [chap. XI. § 355. It seems to be settled that the power of removal from office is incident to the power of appointment in those cases only where the tenure is not iBxed by law,^ and where the office is held at the pleasure of the appointing power;' and where the appointing power may remove for cause, he is the sole judge of the existence of the cause.' § 356. The record of the proceedings of a City Council, removing an officer for misconduct, must state the specific acts complained of, so far as necessary to show the jurisdic- tion of the Council. The jurisdiction must appear, and it will not be presumed.* § 357. 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 conferred to fill a vacancy, appointed a per- son 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 ex- piration 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, resigna- tion 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 ^ Territory v. Askenf elter, 4 New Mex., 85. « Collins V. Tracy, 36 Tex., 546; [Carr v. State. Ill Ind., lOlJ. » Patten V. Vaughn, 39 Ark., 311; [Lynch v. Chase, 55 Kan., 367; S. C, 40 Pac. Rep., 666; McMaster v. Herald, 56 Kan., 331; S. C, 42 Pac. Rep., 697]. * State V. Lupton, 64 Ma, 41S. OHAP. XI.] ELIGIBILITY. 271 duration of the term, are at best hnt prima facie 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 certifi- cate declaring that he was chosen for two years, made no difference as to his rights. * §358. In State v. Jones^'^ the following propositions were laid down: 1. "Where it appears prima facie that acts or events have occurred subjecting an oflBce to judicial declaration of being vacant, the authority authorized to fill such vacancy, supposing the office to be vacant, may proceed before pro- curing a judical 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 prescribed 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 an officer de facto, and should the former incumbent never appear to contest his right he will be regarded as having been an officer de facto and de jure; 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 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 ex- isted and the election or appointment be held to have been valid." And it is doubtless true, as here stated, that no judicial 1 Hale t>. Evans, 13 Ean., 683. « 19 Ind., 356, 359. 272 ELECTIONS. [chap. XL 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 ap- pear 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 oppor- tunity to do so. § 359. It seems that the power ^iven by the Constitution 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 anticipate a vacancy, and make an appointment to fill it, before it happens.* 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, dis- closes 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* 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 Mr. Lanman : " The Governor had thought fit to ap- point Mr. Lanman to a vacancy which would occur, not one which had occurred. This (the Governor's) act was conse- quently declared void."* It has, however, as we shall see,* been held by the United States Senate, in the case of Bell, of New Hampshire,* that * Case of James Lanman, CI. «fc H., 871. » Potter ». Robbins, CI. & H., 877, 886. * See Potter «. Bobbins, CI. & H., Mfpra. * § 365. * Forty-ninth Congress. CHAP. XI.] ELIGIBIUTY. 273 an executive of the State may appoint a Senator to fill the vacancy happening at the beginning of a terra, as well as one that occurs by death, resignation or otherwise, after the office has once been filled. § 360. A member of the Senate of the United States holding an office under executive appointment, has a right to occupy the seat until the vacancy is filled by the legislature, or until the adjournment of the next session of the State legislature, as held in the case named in the succeeding section. 1 § 361. In the case of Phelps of Vermont,^ it was held by the United States Senate 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 ap- pointment 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 can not 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," etc., and the appointee was held entitled to hold the seat until the adjournment of the legis- lature 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 de- cided 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. § 362. As early as the year 1791, it was decided in the lower House of Congress that a member of that body may tender his resignation to the governor of his State, and that » Case of Winthrop, 1 Bart., 807. * 1 Bart., 618. 18 274 ELECTIONS. [chap. XI. such governor may issue a writ for a new election, without any notice to, or action by the House of Represeniatives. * 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."* 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 expul- sion. • 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, inform- ing him and the House of the fact, that he has sent his resignation to the executive of the State. § 363. "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, etc., 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. * > Case of John J. Mercer, CI. & H., 44; Case of Benj. Edwards, Id., 92. « Const Art. 1., Sec. 2. ■ Case of Matteson, Thirty-eighth Congress, and of Wliittemore, Forty. first Congress. * Page 9. Hardin, 8 6. Mon., 648. CHAP. XI.] ELIGIBILITY. 275 The judiciary must, where individual right is involved, decide upon the legality of an act of the supreme executive power, as well as upon the validity of legislative acts.* § 364. It is provided by the Constitution of the United States, 2 that "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session." Suppose a vacancy first happens during a session of the Senate, but continues to exist during the subsequent recess, can the President fill it? This question has been much discussed. It will be seen by reference to the authorities that a difierence of opinion prevails. * The prac- tice of the Executive Department, as will be seen by reference to the Opinions of the Attorneys General, has been to regard the power of appointment as extending to all vacancies that may happen to exist during a recess of the Senate; while of the judges who have considered the question, Cadwallader, District Judge, and Jackson, Circuit Judge, hold the view that a vacancy which first happens while the Senate is in Session, can not be filled by appointment by the President after the adjournment of the Senate; while Mr. Justice Wood agreeing with the Attorneys General whose opinions are cited above, sustains the power. While the weight of these opinions undoubtedly sustains the power of appoint- ment in all cases where a vacancy happens to exist during a recess of the Senate, it is apparent that the question can only be finally put at rest by a decision of the Supreme Court of the United States. §365. There are authorities of great weight, holding that the power to fill a vacancy, occurring in an office can »Id. » Art. 2, Sec. 2, clause 2. • Case of the District Attorney, 7 Am. Law Reg., N. S., 786 ; 8. O., 8 Int. Rev. Rec, 138 ; In re Farrow and Bigby, 4 Woods, 491 ; S. C, 3 Fed. Rep., 112; 1 Op. Att'ys Gen., 631; 2 Id., 525; 3 Id., 673; 4 Id., 638; 7 Id., 186; 10 Id., 356; 11 Id., 179; 12 Id., 32; Id., 449; 14 Id., 53B; In re Yancy 28 Fed. Rep., 445. * 276 ELECTIONS. [chap. XI. not be exercised, until the office has once been filled dnring the term thereof; and that therefore no such power exists in a case where there has merely been a failure to elect within the time required by law. Or, in other words, it has been held, that where power is vested in the executive to fill vacancies, reference is had to such vacancies as occur from death, resignation, promotion or removal, i A different rule was, however, laid down by the United States Senate, in the case of Senator Bell of New Hampshire. * That case involved the construction of Article 1., Section 3, of the Constitution of the United States, which provides that if vacancies in the United States Senate "happen by resignation or otherwise, during the recess of the legislature of a State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." It was contended that the authority of the governor to appoint is limited to filling vacancies which happen in a term which had been previously filled by the legislature, and this was the view taken by the majority of the committee. But the report of the minority, which was adopted by the Senate, took the ground that the governor may also fill a vacancy which happens when the legislature has failed to make the election, or the person chosen declines the appoint- ment, as well as when the office, once filled, is vacated by death, resignation, or otherwise. The minority report in this case, submitted by Senator Hoar, of Massachusetts, and which may now be regarded as the law of the Senate, will be found in the Congressional Record of April 3, 1879, and an elaborate discussion is recorded in succeeding pages. S 366. The question whether the legislature of Michigan has power by legislative enactment to appoint certain munici- pal officers was much discussed in the case of The People v. 'Sargent on Constitutional Law, 378; Schenk ». Peay, 1 Dill., 267;^ Story on The Constitution, Sec. 1559. ' Forty-ninth Congress. CHAP. XI.] ELIGIBILITY. • 277 Hurlbut. ^ The act in question was one whereby the legisla- ture provided for the creation of a board of public works of the city of Detroit, and undertook to name ten persons who should compose such board. Independently of any constitu- tional limitation upon the power of the legislature, it was in- sisted that this was an exercise of executive power as contra- distinguished from legislative. It was also insisted that the act was in violation of that provision of the Constitution of Michigan which declares that "judicial oflficers of cities and villages shall be elected or appointed at such time and in such manner as the legislature shall direct." The Court was agreed in holding that the legislature had no power to make a permanent appointment by statute naming the incumbents. Upon the question whether the appointment of such officers by the legislature as was attempted by the act in question could be sustained as provisional or initiatory only, for the purpose of a primary organization of the board and to put it in full operation, the judges were evenly divided, Christiancy and Cooley, Judges, holding the affirmative, and Campbell, Chief Justice, and Graves, Judge, the negative. ^ § 367« It seems to be settled that the title to an office confers upon the person elected a right to the fees and emolu- ments thereof, from the commencement of his legal terra. 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." > 24 Mich., 44, 113. ■ The following cases may be consulted upon the general subject of legislative appointments to office: People e. Lothrop, 34 Mich., 235; People V. Common Council, 29 Mich., 108, 110; People ex rel. v. Draper 15 N. Y., 532; People ex rel. «. Albertson, 55 N. Y., 50; People ex rel. «., Palmer, 52 N. Y., 83; People ex rel. v. Bull, 46 N. Y., 57; People ex reL V. McKinney, 52 N. Y., 374; People ex rel. v. Common Council, 28 Mich., 228 ; and see other cases cited in People v. Hurlbut, supra. » Arris v. Stukely, 2 Mod., 260; S. C, 1 Selw., N.T., 68; Crosbie v. B.XU. ley, 1 Ale & Nap., 431; May field v. Moore, Bright. Elec. Cas., 605. 278 ELECTIONS. [chap. XL 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." ^ In Mayfield v. Moore^ it was held, however, that if the incum- bent received his commission honajide, he will be allowed in such action his reasonable expenses in executing the duties of the office, but otherwise if his intrusion was without pre- tense of legal right. § 368, In this country, however, the appointment or elec- tion of a person to a public office creates no contract be- tween the government and the officer to permit him to perform the duties and receive the compensation for any particular period of time. The office may be abolished or the compensation increased or decreased,' or the duties changed by law at any time.* A vested right to fees or compensation arises only from the actual rendition of serv- ices.' 1 Glascock v. Lyons, 20 Ind., 1; Petit v. Rosseau, 15 La., 239; People v. Smyth, 28 CaL, 21; People v. Tieman, 30 Barb., 193; People u Pease, 27 N. Y., 45, 56; Hunter v. Chandler, 45 Mo., 452; United States u Addison, 6 Wall., 291; Mott v. Connolly, 50 Barb., 516. 2 Supra. 3 [People V. Kings, 105 N. Y., 180.] < [Smith V. Waterbury, 54 Conn., 174] 6 Smith V. New York, 37 N. Y., 518; O'Conner v. Mayor, 1 Seld., 285; Warner v. People, 2 Den., 272; Swan v. Buck, 40 Miss., 263, 302; Coffin V. State, 7 Ind., 157; Benford v. Gibson, 15 Ala., 521; Barker v. Pittsburg, 4 Barr (Pa. St.), 49. CHAPTER XII. CONTESTED ELECTIONS — TRIBUNALS AND REMEDIES. 369. Quo warranto, common-law jurisdiction. 369. Special tribunals. 369. Office of Governor. 370. Jurisdiction of Legislature. 370. Mode of proceeding before legislative body. 871. Contestant not absolutely necessary. 372. Construction of acts of Congress regulating mode of proceeding. 873. Such acts directory only. 374. Certificate of election prima facie only. 375, 376. Sitting member not entitled to vote. 877. Jurisdiction of the House exclusive. 378. Jurisdiction of special tribunals. 879. Courts may compel them to act by mandamus. 879. Members thereof must be disinterested. 380. Power of legislative bodies to judge of the election and qualifi- cation of their own members, when exclusive. 381. Jurisdiction of courts in absence of special provision of law. 883. Such jurisdiction extends to a contest for the office of Governor of a State. 383. But not to control the Governor in the performance of official functions. 884, 385. Mandamus to compel canvassers to determine and certify result. 386. No jurisdiction in equity to enjoin holding of an election. 887. Injunction not allowed to restrain counting of illegal votea 888. But may issue to restrain the receipt of illegal votes. 389. Will not lie to restrain recording of abstract of votes on ground of fraud. 390. Mandamus in State court to compel canvass of votes cast for Representative in Congress. 891, 892. Trial by jury not allowed. 393. Quo warranto, when issued at common law, 394. Mode of proceeding. 395. Right of elector to contest, given by statute, does not oust juris- diction in quo warranto. 396. Quo warranto not granted merely upon showing that illegal votes have been received. 897-412. Discussion as to proper remedy in various casea 280 KLBcnoNs. [chap. in. § 397-400. Remedy by mandamus and by quo warranto. 401. Mandamus to compel county officer to keep office at county seat 402, 403. Mandamus not granted when there is another adequate and specific remedy. 404 Nor to oust the incumbent of an office. 405, 416. Nor to control the performance of judicial duties. 406. But is sometimes granted to compel swearing in of person elected. 406, 409. Or to compel recognition of person adjudged elected. 406-411. Will lie to compel discharge of purely ministerial duties. 410. Mandamus to compel apj>ointment in certain cases. 412. Also to compel canvass in accordance with original and genu- ine returns. 413. No answer to writ to show that returns are irregular. 414. Granting or refusal of writ discretionary with the court. 415. Office of the writ of mandamus. 417. Decision of board of canvassers conclusive in collateral pro- ceeding. 418, 419. Certificate of election issued under mandamus not conclu- sive. 420. "Will lie to compel registration of legal voter. 42L Not generally issued to compel certificate showing election of particular person. 422, 42a General rules stated. § 369. Jurisdiction to hear and determine cases involv- ing the right to an office is vested by the common law in courts having general common-law jurisdiction, and is exer- cised, as we shall hereafter see, through the agency of pro- ceedings in quo warranto. By the statutes of the several States, numerous special tribunals have been created, and a special mode of proceeding is often prescribed. There are besides many constitutional and statutory provisions making legislative bodies the judges of the election and qualifications of their own members.^ It is often a question whether the jurisdiction of such legislative bodies is exclusive, but this question will be determined in each case by a careful consideration of the language of the constitutional or statutory provision by which it is conferred, the rule being, as we elsewhere 1 [Baltimore v. Flederman, 67 Md., 161 ; Andrews v. Judge of Probate, 74 Mich., 278.] CHAP. XII.] CONTESTED ELECTIONS. 281 show,* that the jurisdiction of the courts is not ousted unless Buch appears to have been the plain purpose.* The jurisdiction to determine the right of a person exer- cising the office of governor raaj be by statute or constitution vested in the legislature; and where it is thus vested exclu- sively, the courts will of course have no jurisdiction in the premises.* § 3Y0. 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 under- stood, both by the parties themselves and by the body which is to try the case. § 371. 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 neces- sary.* If circumstances arise which, in the opinion of the House, make it their duty to investigate the right of a mem- ber to a seat, the House may proceed upon its own motion. The public interests being involved and not merely the per- sonal interests of the incumbent and contestant, it follows of course that the death of the contestant or his withdrawal i§380. 2 0'Farrall v. Colby, 2 Minn., 180; [State v. Tissot, 40 La. Ann., 598]. * State V. Baxter, 28 Ark., 129, Walker's American Law, p. 566. Blackstone's Comm., Vol. 8, p. ,268. • People «. Holden, 28 Cal., 123. CHAP. Xri.] CONTESTED ELECTIONS. 293 longing to the elector in his individual capacity, as a power granted, and the other to the people, in the right of their sovereignty." ^ § 396. In Ex parte Murphy ' it was held that the mere circumstance that improper votes were received at an elec- tion will not vitiate it. In that case, one candidate had re- ceived 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 mo- tion 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 ex- plained and probably qualified. If it goes no further than to hold that the information in that particular case was insuf- ficient to warrant the allowance of a quo warranto, 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 elec- tion 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 oflice until he shows, afiirraatively, that he has received a majority of the legal votes cast. §397. It is proper at this point to discuss the distinctions between cases wherein quo warranto should be resorted to and those where mandamus will lie. Mandamus is not the proper remedy for obtaining posses- sion of an ofiice, or for ousting one who usurps an oflSce. There are cases perhaps where there is no doubt as to the duty of a public ofiicer 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 ques- * See also, People -o. Jones, 20 Cal., 50. » 7 Cowen, 153. 296 ELECTIONS. [chap, XII. tion of any doubt, a court should not interfere by mandamus, but should put the party in the first instance to an informa- tion in the nature of a quo warranto, or to such remedy as may be specifically provided by statute.^ § 398. 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 oflicers 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 le- gality 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.' § 399. Mandamus will lie to compel a board of returning oflBcers to declare the result * and issue certificates in accord- ance 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.* And in "West Yirginia 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 oflicers adjudged by the court to have been duly elected at a valid election.' But of course this latter case must have been one in which the election returns, and all proper evidence as to the result, 1 Commonwealth v. Commissioners, 5 Rawle, 75. [A writ of manda- mus will issue only when the right to require the performance of the desired act is clear. State v. Bowman, 45 Neb., 752.] 2 [Mandamus will lie to compel inspectors of election to make a true return. Gleason v. Blanc, 14 Misc. R, 620.] 8 State V. Churchill, 15 Minn., 455. * [But not to declare any particular result. State v. Thrasher, 77 Ga., 671.] » Clark V. McKenzie, 7 Bush (Ky.), 523; [Enos v. State, 131 Ind., 560]. « Burke v. Monroe Co., 4 W. Va., 371. CHAP. XII,] CONTESTED ELECTIONS. 297 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 deter- mine the title to an office. § 400. It has been held in Massachusetts that mandamus will not lie to compel a board of examiners of election re- turns to count certain votes containing the initial letter only of the Christian name of a candidate with other votes con- taining his name in full. This, upon the ground that the duties of the board under the statute of that State are purely ministerial, and it cannot receive or consider (as a court may) any evidence of extrinsic circumstances, but is confined to the record of votes returned and laid before it.^ § 401. Where a statute requires a county office to be lo- cated at the county seat, mandamus will lie to compel the officer to open and hold his office there. And it is no an- swer to such a proceeding to show that there is a dispute as to which of two or more places is the county seat. The court is bound to inquire and determine where the county seat is, even if in order to this it may be necessary to deter- mine as to the legality or result of an election held to settle the question of the location or removal of the same.^ § 402. 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 man- damus 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 1 Clark V. Hampden Co. Ex's, 126 Mass., 283. 2 The State v. Commissioners, 35 Kan., 640; [State v. Hamil, 97 Ala., 107. But in Nebraska it has been held that on an application for a mandamus to compel the removal of a county seat in pursuance of the declared re- sult of a canvass of the vote on the question of relocation, the court cannot go behind the returns and investigate issues of fraud and ille- gality in the matter of conducting the election. State v. Roper, 46 Neb., 730]. 3 [Scoville V. Calhoun, 76 Ga., 263.] 298 ELECTIONS. [chap. XII. ground that an information in the nature of a quo warranto 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 in- cumbent, exercising its functions de facto 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.^ And the same doctrine is maintained in the courts of England.^ A few cases may be found which seem to hold a contrary doctrine.' But it is safe to say that the rule as above stated is sustained by the overwhelming weight of authority. § 403. And the rule is quite as well sustained by reason. Mr. High, in his excellent work on Extraordinary Eemedies, well says : * " 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 re- lief 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 pro- ceedings to test the disputed title. And the rule finds still further support in the fact that ordinarily the determina- tion of the question of title to a disputed office upon pro- ceedings in mandamus would be to determine the rights of 'High on Extr. Leg. Rem., § 49; People u Corporation of New York, 3 Johns. Cas., 79; People u Supervisors of Green Co., 12 Barb., 217; Anderson v. Colson, 1 Neb., 172; Bonner v. State, 7 Ga., 473; St. Louis Ca Court v. Sparks, 10 Mo., 118; State v. Rodman, 43 Mo., 256; People v. Detroit, 18 Mich., 338; Underwood v. White, 27 Ark., 382; Peoples. For- quer, Breese, 68; State v. Dunn, Minor (Ala.), 46; Commonwealth v. Commissioners, 6 Whart., 476. 2 King w. Mayor of Colchester, 2 T. R, 360; Queen v. Derby, 7 Ad. «fc E., 419; King v. Winchester, Id., 215. 3 Conlin v. Aldrich, 98 Mass., 557; Harwood v. Marshall, 9 Md., 8a *§50 CHAP. XII.] CONTESTED ELECTIONS. ^99 the de facto incumbent in a proceeding to which he is not a party." § 404. " Where the office is already filled," says the court in People v. Corporation of New Yorlc, supra^ " by a per-' son 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 de- fense. The proper remedy in the first instance is by an in- formation in the nature of a quo warranto, by which the rights of the parties may be tried." § 405. 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.^ § 406. 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 dis- puted and contested elections, to compel the qualifying offi- cer 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 cited,'' "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 quo warranto. And before a mandamus will be granted to compel the recognition of one as an officer, the court iKingu Clark, 2 East, 70; Churchwarden's Case, Carth., 118: King «. Rees, Id., 393; Ex parte Heath, 3 Hill, 43; High on Extr. Rem., § 53, and cases cited. «§53. 300 ELECTIONS. [chap. XIL will require that judgment of ouster shall have been given against the incumbent de factoP ^ § 407. The Supreme Court of Massachusetts, in Ellis v. County Commissioners,^ 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 treas- urer, 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 war- ranto in order to remove the incumbent from the office and place the petitioner in possession ; and it is therefore exddent that the latter action is, in the absence of statutory regula- tions, the more appropriate remedy, and that it should be adopted in the first 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 prejudge his claims. 1 Commonwealth v. County Commissioners, 5 Rawle, 75, Where elec- tion officers act in a ministerial and not in a judicial character — that is to say, in cases where they exercise no discretionary powers — they are subject to be compelled to proceed and perform their duties by mandamus. And it has been held that mandamus will lie to compel the granting of a certificate of election to a person legally elected when the same is unlawfully withheld. State v. The Judge, etc., 13 Ala., 805, Mandamus will not be granted to compel the canvass of the votes cast at an election which was held without authority of law. State V. Whittemore, 11 Neb., 175. 2 2 Gray, 370. CHAP. XII.] CONTESTED ELECTIONS. 301 § 408. 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, as already intimated, the proper remedy for a failure of election officers to perform certain merely ministerial duties in connection with elec- tions.* 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.^ But the effect of a man- damus to swear one into an office is not to create or confer any title not already existing.^ § 409. It is also clear that after there has been a judg- ment of ouster given against the incumbent ds facto, 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 process is provided by law.* And when mandamus is asked to compel the issuing of a com- mission to a person duly elected to an office, it is essential that the relator should show a clear title to the office claimed.' § 410. Mandamus will lie to compel the making 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 ap- pointing 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.' 1 [Mandamus will lie to compel a returning officer to make his state- ment complete and accurate. Steward v. Peyton, 77 Ga., 668.] ^ Ex parte Heath, 3 Hill, 43. ' High on Extr. Rem., § 52, and cases cited. < Commonwealth v. County Commissioners, 5 Rawle, ?& « State V. Albin, 44 Mo., 346. 6 [State V. Houston, 40 La. Ann., 393; S. C, 4 Sa Rep., 50.] ' People V. Regents, 4 Mich., 98. 302 ELECTIONS. [chap. XII. § 411. The rule is, that mandamus will lie to compel election officers to discharge purely ministerial functions as contradistinguished from such duties as are quasi judicial in their character.^ The duties of returning officers are purely 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 r t 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 man- damus as to how they shall decide. If they decide any such questions wrongfully or erroneously, the party injured has his remedy by quo warranto or by such other form of remedy as may be provided by statute. § 412. Canvassing officers are bound to certify the result of an election as shown by the returns made to them,* and 1 [State V. Houston, 40 La. Ann., 393; S. C, 4 So. Rep., 50. As to man- damus against officers of the United States, see note to case of United States ex rel. v. Bayard (Dist. of Colo.), 17 Am. & Eng. Corp. Cases, 485- 498.] 2 [State V. Kavanagh, 24 Neb., 506.] « [Houston V. Steele (Ky.), 34 S. W. Rep., 6 ; Page v. Letcher, 11 Utah, 119 ; 39 Pac. Rep., 499. Where a statute required the registrar to appoint com- missioners ten days and to publish them six days before the election, if he has refused to perform this duty, parties interested are not precluded from judicial remedy because he has so acted, and mandamus will lie after the time named to compel such appointments. State v. Houston, 40 La. Ann., 393; S. C, 4 So. Rep., 50. But a peremptory mandamus will not be allowed requiring the judges and clerks of an election to count ballots rejected by them after such ballots have been returned to the county clerk and are beyond their control. State v. Russell, 39 Neb., 116.] ♦[Board of Education of Topeka v. Welch, 51 Elan., 792.] CHAP. XII.] CONTESTED ELECTIONS. 303 if such returns are altered by either fraud or mistake, after being sent in, the canvassers should disregard the altera- tion and base their certificates upon the original and genu- ine returns. The vote as certified must be canvassed. No alteration of that vote known by the canvassers to have been made after the returns were made could alter their duty to certify the vote so returned, and the performance of this duty can undoubtedly be compelled by mandamus.^ The case of State v. Garesohe ^ presented the question whether mandamus will lie in such a case if it appears that an altera- tion has been made in returns, but the canvassing oflBcer does not know, although he believes it to have been fraudu- lently done after the return was sent in. The Court de- cided this point in the affirmative, holding that it is the duty of the Court in such a case to take proof and determine for the canvassing board which is the vote originally certified. The Court said : " A peremptory writ of mandamus simply to count the vote certified by the judges and clerks, without ascertaining which was the vote so certified, would be a mere hrutum fulmen^ as it could never be determined from a certificate of obedience whether the writ had in fact ever been obeyed." And the Court held that it was proper for the court trying the mandamus case to determine which was the true return and compel the board to canvass it. This ruling is not in conflict with the general doctrine that mandamus will not lie to control the exercise of a discretion. The discretion contemplated by that doctrine is judicial in its nature. It cannot be said that the canvassing board has any discretion to certify the result as shown by a fraudulent alteration of the returns. Its duty is purely ministerial and consists in cer- tifying the vote as returned. The performance of this min- isterial act may be enforced by mandamus; and where the court is advised that the returns as originally made by the 1 [Belknap r. Board of Canvassers of Ionia County, 94 Mich., 516; Roemer v. Board of City Canvassers of Detroit, 90 Mich., 27.] 2 65 Mo., 480. 304: ELECTIONS. [CHAP. XII. judges of election have been fraudulently or accidentally altered, it is competent for the court to compel the board to disregard the alteration. § 413. It is no answer to an alternative writ of manda- mus commanding a board of canvassers to count and canvass the returns of certain precincts to show that the returns are irregular and imperfect, without showing that they are in such a state as to render it impossible to ascertain from them the vote cast and for whom cast. Thus, it has been held in Florida that such irregularities as the following will not ex- cuse the board from making the canvass and certificate re- quired by law : 1. That one return has the number of votes for one can- didate written twice, and the other, which should have been a duplicate, did not contain this repetition. 2. That the jurat to the oath returned by the inspectors was not signed. 3. That the two returns which should have been dupli- cates also differed in this, that one referred to a certain act of date August 6, 1868, and the amendments thereof, as the law under which the election was held, while the other gave the dates of the amendments. 4. From certain marks on the ballots the canvassers con- sidered them unlawful.^ § 414. It rests in the discretion of the Court to grant or refuse a writ of mandamus to compel the canvass of the votes cast at an election.' As a general rule the writ will be granted upon a showing that the board refuses to canvass the vote according to the face of the returns. The cases are indeed rare where the writ will be refused upon such a showing. All questions affecting the hona fides of the re- turns, and the correctness of the result indicated by them, 1 State V. Canvassers, 17 Fla., 9. But it ha8 been held that a canvassing Qflficer cannot be compelled to canvass returns sent to him unsealed in disregard of a statute requiring that they be sealed and delivered to him. State v. Randall, 35 Ohio St., 64 2 f Shellabarger v. Commissioners of Jackson County, 50 Kan., 138.] CHAP. XII.] CONTESTED ELECTIONS. 305 will, as a rule, be left to be determined upon a contest. IS'evertheless a case may arise where fraud is so apparent that a court may refuse to compel the completion of the canvass. Thus, it has been held in Kansas that where the returns showed a vote cast of two thousand nine hundred and forty-seven, upon the question of removing a county seat, while in point of fact there were only about eight hun- dred legal voters in the county, the court should refuse to even apparently sanction so great a fraud by issuing a man- damus to compel, in the name of a technical compliance with duty, the canvass of such returns. The writ was accord- ingly refused.^ § 415. The office of the writ of mandamus is to compel the performance of a duty imposed by law upon an inferior tribunal.^ "Whatever the duty may be, its performance may be required by this form of procedure. Hence, it has been held that where it was the duty of a board of county can- vassers, under the circumstances described in evidence, to remit an erroneous return to the district inspectors for correction, the performance of this duty could be compelled by mandamus. Until the inspectors have made a true return, their duties are undischarged.' But after the in- ferior tribunal has completed the performance of its duties, mandamus will not lie by a contestant to compel the count- ing of votes cast for him. The remedy in such a case is by a contest.* § 416. 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 1 The State v. Stevens, 23 Kan., 456. 2 People V. Schiellein, 95 N. Y., 124. 8 People V. Green County Canvassers, 12 Abb. (N. Y.) New Cases, 95; S. C, 64 How. (N. Y.) Pr., 201. < Myers v. Chalmers, 60 Miss., 7721. 5 [Arrison v. Cook, 6 D. C, 335.] 20 306 ELECTIONS, [chap. XD. must be constantly borne in mind that the oflBce of this writ is to compel the performance of acts which are purely minis- terial 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.^ § 417. In proceedings by mandamus involving collaterally the rights of contesting claimants to an oifice, 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.^ In accordance with this doctrine it has been held that where the statute directs the board of county commissioners to order an elec- tion for county officers, provided a certain number of quali- fied 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.* 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 predetermined 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.* iQrier v. Shackleford, 2 Brev. (Sd ed.), 549; Mayor, etc.; v. Rainwater, 47 Miss., 547. 2 People V. Stevens, 5 Hill, 616; High on Extr. Rem., § 57. [Where the board of supervisors of a county in Michigan has ordered an election to decide upon the removal of a county seat, and canvassed the vote and decided the result, such action is conclusive, and not subject to review by the courts of the State. Hipp v. Charlevoix County Super- visors, 62 Mich., 456. See, also, Dauble v. McQueen, 96 Mich., 39.J * State V. Commissioners, 8 Nev., 309. ♦ State V. Carney, 3 Kan., 88. <3HAP. XII.] CONTESTED ELECTIONS. 307 § 418. We have seen that mandamus does not lie to com- pel 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 admis- sion 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 pre- cisely the same force as if issued without such writ. In either case it is only prima facie evidence of title to the office,^ and may be attacked and overthrown by other proof.' § 419. In People v. HilUard ' 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 propose to turn the others out of office on an applica- tion for mandamus. They are not parties to this adjudica- tion." On the contrary, however, it was held in Magee v. Supervisors,^ 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 warranto. 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. § 420. It has also been held that mandamus is the proper remedy to compel a registering officer to register as voters 1 [Bisbee V. Hull, 1 Ells., 315.] 2 High on Extr. Rem., § 61; State v. Gibbs, 13 Fla., 55; People v. Hill- iard, 29 111., 413, 419; In re Strong, 20 Pick, 484; People t?. Elves, 27 III, 241; Brower v. O'Brien, 2 Ind., 42a * Supra. nOCaL, 876. 308 ELECTIONS. [OHAP. XH, the names of persons properly qualified.^ [But a petition for the writ in such a case is premature where the officer or board has not yet held a session for hearing applications.^ ] § 421. 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, does not determine the ques- tion of the right to the office. It merely places him in pos- session of the office to enable him to assert his right, which in some cases he could not otherwise do.' 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 improvident, 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 re- turned 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. § 422. In Kisler v. Caineron^ supra, it seems that no ques- tion was made as to the fact that the relator had received a majority of the votes cast. The inspectors declined to cer- tify, on the ground that in their opinion the election was void, for some reason not stated in the report of the case. 1 Da vies v. McKeely, 5 Nev., 804 2 [United States v. Bowen, 6 D. C, 196.] sBrower u O'Brien, 2 Ind., 423; Moses on Mandamus, 90; Kisler v. Cameron, 39 Ind., 48a OHAP. XII.] CONTESTED ELECTIONS. 309 Mandamus was granted on the ground that it was not the province of the inspectors to inquire 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 cer- tificate as provided by the plain terms of the statute, and this they were required to do. § 423. We gather from all the authorities the following rules : 1. If the oflBcers of election refuse or fail to act, manda- mus will lie to compel them to discharge their duties as re- quired by statute ; but in such cases the writ will not, as a general rule, command such officers to certify that any par- ticular 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 re- ceived the majority of the votes cast, and that no question is made upon this point, perhaps mandamus may issue to com- pel 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 there- fore the latter form will always be found to be the best. CHAPTER Xm. CONTESTED ELECTIONS — PROCEDURE. § 424. Practice usually governed by local statutory regulations oar roles of legislative bodies. 425. Information in quo warranto. 426. Notice. 427. Must be served within time prescribed. 428. Rule for computing time. 429. Specification in notice of grounds of contest 429. Names of illegal voters need not be stated- 430. Proof of service of notice. 431. Statutes providing for contesting elections to be liberallj' con- strued. 482. The claimant must set forth a meritorious case. 433. Mode of verifying grounds of contest 434. Requisites of petition under Ohio statute. 435. 435a. Application for recount of ballots. 4355. Continuance, when granted. 435c. Evidence admissible upon a recount in Illinoia 436. Statutory mode must be followed. 437-439. Requisites of pleading. 440. Certainty to common intent only required. 441, 443. Amendments must be made without delay. 444. Pleadings in special statutory proceedings. 445. What issues may be tried. 446. 447. No judgment by default in the United States House of Rep resentatives. 448-450. Mode of proceeding in contested election cases in the United States House of Representatives. 451. Importance of rule requiring sitting member to proceed with diligence. 452, 453. Extension of time for taking of testimony. 454 Parties not allowed to discontinue or compromise. 455. Interest of the people in contested election cases. 456. Continuances not generally allowed. 456a. Where contestee dies pending contest, proceedings binding on his successor. 457. State law followed in Congressional contests. 457a. Result of a criminal prosecution not considered as binding on the House. 458. Costs. OHAP. XIII.] CONTESTED ELECTIONS. 311 § 424, It seems proper, in the ne^^t place, to give some attention to the subject of practice or procedure, including notice, pleading and the mode of procuring testimony, in contested election cases. Matters of this character are largely governed by local statutory regulations,^ and in legislative bodies sometimes by the rules and orders of the body, the details of which need not be given here. It must suflSce to refer to the more important of the rules bearing upon these subjects which have from time to time been established, and to some of the principles by which we are to be gov- erned in the construction and administration of the statutes applicable thereto. § 425. In the absence of a statute prescribing the mode of contesting an election, the common-law proceeding by an information in the nature of a quo warranto must be re- sorted to. The information, according to the modern prac- tice, must be filed on behalf of the State by the public pros- ecutor, usually by the Attorney General, and its purpose is to inquire into and correct the alleged usurpation of a pub- lic olfice by one not entitled thereto. While the proceeding retains its criminal form, it is now universally regarded as in substance a civil proceeding. The proceeding is insti- tuted at the instance of a private citizen or citizens desig- nated as the relator or relators, and its purpose is the de- termination of purely civil rights. The proceeding must be instituted in a court of general common-law jurisdiction, and the information must set forth the facts constituting the Information by the incumbent of the office, as weU as those upon which the relator's claim to the office is founded. Ap- plication must be made to the Court for leave to file the information, and, although leave is ordinarily granted as a matter of course, it rests in the sound discretion of the court to which the application is made to either grant or refuse it.* 1 [Requisites of petition in Alabama. Taliafero v. Lee, 97 Ala., 93. Requisites of notice as to time and place of contest in Indiana. Grim- bell V. Green, 134 Ind., 628.] 2 High on Extr. Leg. Rem., § 605, note 2. 312 ELECTIONS. [chap. XHI. § 426. iN'otice is absolutel}'^ essential to the validity of a proceeding to ou:;t the incumbent of an oflBce, and proceed- ings instituted and carried on without notice to the incum- bent should be treated as absolutely nuU 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 legis- lative 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.' 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. § 427. 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.* " 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, Costello v. St. Louis Circuit Court!' And it may be added that there is the strongest reason for enforc- ing this rule most rigidly in cases of contested election, be- cause promptness in commencing and prosecuting the pro- ceedings is of the utmost importance, to the end that a 1 [Though a notice of contest of an election is so indefinite that an objection would lie if made in proper time, it is sufficient if the par- ties take issue without objection and try the case. Lunsford «. Culton (Ct of Appeals, Ky.), 23 Pac. Rep., 946.] 2 [Whitney v. Blackburn, 17 Oreg., 564.] « Duffield's Case, Bright Elec. Cas., 646. ♦Bo wen v. Hixon, 45 Mo., 340; [Seeley v. Killoran, 53 Minn., 240]. »28Mo., 259, 27a CHAP. XIII.] CONTESTED ELECTIONS. 818 decision may be reached before the term has wholly or in great part expired.^ § 428. 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.^ § 429. The act of Congress approved February 19, 1851 [Eev. Stat., sec. 105], " 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 reasonable 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 suflEiciently specific to put the sitting member upon a proper defense and prevent any 1 [Higbee v. Ellison, 92 Mo., 13.] 2 Batman v. Magowan, 1 Mete. (Ky.), 533. » [Thobe v. Carlisle, Mob., 533.] ♦ [Duffy V. Mason, 1 Ells., 361; Baynton v. Loring, 1 Ells., 846.] 314 ELECTIONS. [chap. XIH. surprise being practiced upon him is good, but one which fails to do this is bad.^ 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, and when and where polled, without specifying the names of the illegal voters.^ The same rule prevails in cases brought under statutes providing for the contest of elections.' § 430. In Follett v. Delano* 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 suf- ficient. And the committee in the same case also expressed the opinion that, inasmuch as the statute requires the con- testant 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 con- sidered upon its merits, notwithstanding the defective serv- ice, 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 quite 1 Wright V. Fuller, 1 Bart., 152. [This rule obtains in contested elec- tions in Minnesota. Soper v. Board of County Commissioners, 46 Minn., 274 A contestee may waive the insufficiency of the contestant's no- tice of contest. Duffy v. Mason, 1 Ells., 361; Otero v. Gallegos, 1 Bart., •177; Bramberg v. Haroldson, Smith, 356.] * Wright V. Fuller, supra; Vallandigham v. Campbell, 1 Bart., 223; Otero V. Gallegos, 1 Bart, 177; Case of Joseph B. Varnum, CL & H., 112. 'Gibbons v. Sheppard, 65 Pa. St., 36; Batturs v. Megary, 1 Brewst, 16i, Doerflinger v. Hilmantel, 21 Wis., 566; [Berry v. Hull (N. M.), 30 Pac Rep., 936; Batterton v. Fuller (S. Dak.), 60 N. W. Rep., 1071]. < 2 Bart, 113. CHAP. XIII.] CONTESTED ELECTIONS. ^X5r 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. § 431. It may be stated as a general rule, recognized by all the courts of this country, that statutes providing for contesting elections are to be liberally construed, to the end that the will of the people in the choice of public oflBcers may not be defeated by any merely formal or technical objections.* Immaterial defects in pleadings should be disregarded ; neces- sary and proper amendments should be allowed as promptly as possible ; and the court should require the parties to speed the cause, so that the official term which is in dispute may not expire either in whole or in large part before the final decision is reached. § 432. The title of one who has qualified and entered upon the duties of an office depends upon the fact of his election, and not upon the acts and omissions of boards of canvassers or other officials charged with duties in connec- tion with the conduct of the election and the ascertainment and declaration of the result. If a contest is instituted under special statute, or a quo w^arranto proceeding commenced to try title to an office, it must be heard upon an allegation which goes to the merits, and shows that the incumbent was not in fact elected by the electors.^ § 433. Where a statute provided that the grounds of contest " must be verified by the affidavit of the contestiug 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 mat- ters therein set forth on information and belief, and as to those matters affiant believes it to be true,^ This has been 1 Hadley v. Guthridge, 58 Ind., 302; [Grimm v. Hubbard, 97 Mo., 311]. ^Ex parte Smith, 8 S. C, 495; Ex parte Norris, Id., 408; Govan v. Jackson, 33 Ark., 553. 3 [Kreitz v. Behrensmeyer, 125 111., 141.] 316 BLECTIONS. [chap. XIH. 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 state- ment or petition of his own knowledge 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 information and belief only.^ § 434. "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.^ § 435. 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.' These rulings were made in cases of applica- tions to the 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 Court to entertain the complaint, and that a general allegation of errors believed to exist was not enough to au- 1 Kirk V. Rhoads, 46 CaL, 398. 2 Edwards v. Knight, 8 Ohio, 375; [Gillespie r. Dion (Mont), 44 Pac. Rep., 954]. »Kneass' Case, 2 Pars., 599; Thompson v. Ewing, 1 Brewst, 67, 97; Peau V. Field, Ella, 190]. CHAP. XIII.] CONTESTED ELECTIONS. 317 thorize the perilous experiment of testing the election return by the result of a recount. In Nebraska the canvassing officers have no authority to go behind the poll books and returns and inspect the ballots.^ [§ 4:S5a. In an election contest an application for a recount of ballots must conform to the statutory requirements gov- erning such applications, and a mere oral request is not suf- ficient.] ^ [§ 435J. It has been held in California that where a re- count of votes made some time after the election disclosed a very material change, and where affidavits Avere filed at- tacking the result of the recount and charging fraud, and offering to prove by the testimony of voters that more votes were cast for a certain candidate than appeared from the recount, it was the duty of the Court to grant a continuance for a short time to allow an investigation.] ' [§ 435c. In Illinois it is held as follows: Under an an- swer admitting that the ballot-boxes containing the ballots were forwarded to the county clerk and opened by him, with two justices, within four days after the election, the preliminary showing that the ballots are unchanged is suf- ficient to support a decree for a recount, as after the re- count the contestee may show that the ballots have been changed, if such is the fact; evidence by the contestee that a ballot, after having been handed to the election officers, was changed by having a name pasted over that of con- testee, though no such matter is charged in the answer, is admissible upon the issue raised by contestee's denial of the petition alleging that contestant w as actually elected to the office ; and evidence that a ballot was voted which does not appear among the ballots in the recount is admissible, though not pleaded in the answer, to rebut the case made out in chief by contestant.] * 1 Kane v. People, 4 Neb., 509. 2 [McCoy V. Boyle, 51 N. J. Law, 53; S. C, 16 Atl. Rep., 15.] 3 [Lord -;. Dunster, 79 CaL, 477; S. C, 21 Pac. Rep., 865.] * [Kreitz v. Behrensmeyer, 124 III, 141.] 318 ELECTIONS. [chap. XHI. § 436. When the statute of a State provides a mode for contesting an election, that mode must be followed.^ And in Illinois, the statutory proceeding is held to be, to all in- tents and purposes, a chancery proceeding.^ § 437. In Slcerret^s Case ' the Court of Common Pleas of Philadelphia had occasion to discuss the requisites of a pe- tition 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 sub- scribe an oath or affirmation that the facts sets forth in said complaint are true," etc. 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 declare another per- son 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. And it has also been held bad on demurrer.* There is no doubt as to the soundness of this ruling. It is not desirable to encourage groundless or f rivo- 1 Dickey v. Reed, 78 ni, 261. « Dale V. Irwin, 78 HI., 170. See, also. State v. Stewart, 36 Ohio St., 216. » 2 Pars., 509. •[State V. Stinson, 98 N. C, 591; State v. Patterson, 98 N. C, 593; Kreitz v. Behrensmeyer, 125 111., 141; Sone v. Williams, 130 Mo., 530.] 5 [Todd V. Stewart, 14 Cal., 286. The Nevada statutes provide that any person who may be convicted of having offered a bribe to secure his election or appointment to office shall be disqualified to hold. An- other section provides for the contest of an election in case the per- son elected to the office shall not, at the time of the election, be eligible to such office. Held, that a complaint to contest the election of a dis- trict attorney which alleged that the contestee offered, before election, to make a bohd conditioned that if elected he would return to the €HAP. XIII.] CONTESTED ELECTIONS. 319 lous 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 Skerrefs Case, supra, " 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." ^ § 438. 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.'^ Leave of Court must be had to file an informa- tion of this character, under the common law, though the Attorney General of England, it seems, might file it at his will." § 439. "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.* county treasurer each month a portion of his salary, but does not allege that he had been convicted of offering such bribe, does not show- that he was disqualified to hold the oflSce, and is fatally defective. Egan V. Jones, 21 Nev., 433.] ^Upon this general subject see Carpenter's Case, 2 Pars., 537; Lelar's Case, 2 Pars., 548; Kneass' Case, 2 Pars., 553. 2 Gano V. The State, 10 Ohio St., 237. » 4 Blackstone, 311. * Kneass' Case, supra. And see Batturs v. Megary, 1 Brewst, 163. 320 ELECTIONS. [chap. xi:i. § 440. It was held by the Supreme Court of Pennsylva- nia, in Gibbons v. Sheppard^ that certainty to a common in- tent 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. Undoubtedly the same rule should be applied to a plead- ing of this character that is applied to all other similar pleadings. It should state in a legal and logical form the facts which constitute the ground of the complaint ; nothing more is required; nothing less will suffice.^ § 441. In most of the States of the Union there are stat- utes to regulate pleadings, under which courts are author- ized 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. In the absence of any statute of this character, the court trying a case of contested election may, under 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.* § 442. There is, however, a very strong reason for re- quiring any such amendment to be made inst^nter, and for bringing an election case to a prompt and speedy trial and determination, and it is this : The subject-matter of the con- troversy 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 "law's delays" 12 Brewst., 2; S. C, 65 Pa. St., 36. 2 [Whitney v. Blackburn, 17 Oreg., 564] >Kneass' Case, 2 Pars. (Phila.), 553; S. C, Bright Elec Cas., 837^ [Heyfron v. Mahony, 9 Mont., 487; Wilson v. Hines (Ky.), 35 S. W. Rep.,. 627; Nash v. Craig (Ma), 35 S. W. Rep., 1001]. CHAP. XIII.] CONTESTED ELECTIONS. 321 are to be allowed in these as in other cases, the term would often expire before a decision could be reached. If, there- fore, 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.^ § 443. As we have already seen, there are strong reasons for requiring the parties to an election contest to use great diligence in preparing for an early trial. In accordance with this rule it is held that an amended pleading setting up new facts will only be allowed where it affirmatively appears that such facts are new ; that they were first discovered after the service of the original notice; and that by the use of due diligence they could not have been discovered before such service.^ And in Louisiana it is held that all statutes pro- viding for the speedy determination of election cases are to be strictly construed.' § 444. The special actions and forms of proceeding pro- vided for 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 diJffer in the formula of proceeding from pro- ceedings 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 stat- utes of most of the other States.* § 445. The inquiry in a court for the trial of a contested 1 See, also, Gibbons v. Sheppard, 65 Pa. St., 20, 35; Mann v. Cassiday, 1 Brewst, 32; Thompson v. Ewing, Id., 68, 97, 101. 2 Harrison v. Lewis, 6 "W. Va., 713. 3 State V. Hall, 26 La. Ann., 58; [Vailes v. Brown, 16 Cola, 462]. * People V. Pease. 30 Barb., 58a 21 ELECTIONS. [chap. XIII. election under the Kansas statute is not necessarily limited to the matters presented in the contestor's statement. The contestee may be heard, not merely in denial, but in proof of other matters tending to show his right to the office, not- withstanding the matters alleged in the statement ; and these other matters the contestor may also controvert or avoid.^ § 44:6. In the case of Follett v. Delano^ it was 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 fail- ing 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 an- swer 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 contest- ant 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 representa- tion. The electors of 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 in- sisting that the choice of the majority shall be regarded. No confession of the sitting member, however it might bind 1 Baker v. Long, 17 Kan., 841. 2 3 Bart, lia CHAP. XIII. J CONTESTED ELECTIONS. 323 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 elec- tion,' for he has never given notice of any such grounds; but the committee are of opinion that the House should re- quire 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 mem- ber may have seen fit to conduct his own case in a contest." § 447. A similar ruling was made in the recent case of Sheridan v. Pinohhach} It is very clear that the usual judgment by default, such as would follow a failure to an- swer in the courts of the country, should not be rendered in a case of contested election in the House of Eepresentatives. If the sitting member has not answered he may well be re- garded 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 v. Pinchhach the committee say that the case of the contestant, where the sitting member does not answer, is no stronger than if no one were 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. § 448. The practice in cases of contested election in the House of Eepresentatives of the United States is not, and perhaps never can be, very definitely settled, for the reason 1 [Smith, 196.] 324 ELECTIONS. [chap. XIH. 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 con- test under the statutes 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.' 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 Eepresentative in Congress, and for declaring the result, and these statutes must be con- sulted 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 1 [Jones V. Shelley, 2 Ells., 681.] « [Posey u Parrett, Row., 187.] » Revised Statutes, § 105. CHAP. XIII.] CONTESTED ELECTIONS. 325 it be made known in some manner.^ The statute is silent as to the manner of the service of the notice ; it declares that the contestant shall " give notice in writing," etc. In Fol- lett V. Delano^ the committee expressed the opinion that the correct construction of the statute would require personal notice, and that service made by leaving a copy at the resi- dence of the sitting member would not be good.' [In a later case, however, it has been held by the House that it is sufficient to serve the notice upon the wife of the contestee at his place of residence, if the contestee is absent from the State or Territory.*] Undoubtedly the service should be made personally upon the returned member, if this is prac- ticable ; 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 pro- cess. 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 Follett v. De- lano, supra, the sufficiency of this mode of proof was denied. Where the returned member answers, he waives any infor- mality 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 1 Gunter v. Wilshire [Smith, 333]. 2 3 Bart., 113,115. 3 §430. * [Manzanares v. Luna, Mob., 61.] 5 [See note to § 429.] 326 ELECTIONS. [chap. XIII. the time when he is served with the notice of contest, an- swer the same. The answer must be served upon the con- testant. 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 the notice of contest. The answer may deny or admit the allegations of the notice, and may state specific- ally any other grounds upon which the returned member rests the validity of his election.^ 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, how- ever, is not necessary. Inasmuch as the notice and answer are the only pleading recognized by the statute, no further pleading can be required, and the new matter contained in the answer must be proven, to avail anything, whether it is formally denied or not. 3. The statute allows ninety days in which to take testi- mony in a contested election case, and requires that it be divided between the parties as follows : The contestant shall take testimon}'- during the first forty days, the returned mem- ber during the succeeding forty days, and the contestant may take testimony in rebuttal only, during the last ten days.'- 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.' 4. The statute provides for taking testimony in contested election cases, either within or without the Congressional dis- trict. In either case the notice provided for by Section 108 of the Revised Statutes must be given. By Section 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 enable the parties to complete the taking of testimony within the time prescribed. The officers before whom testimony 1 Revised Statutes, § 106. 2 Revised Statutes, § 107. 3 See Act of March 2, 1875; [Bradley v. Siemens, 1 Ella, 296wl OHAP. XIII.J CONTESTED ELECTIONS. 327 may be taken are those named in Section 110 of the Revised Statutes, and the same oflficers are authorized to take deposi- tions of witnesses residing out of the reach of a subpoena.^ The party desiring to take testimony must give the notice required by Section 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 subpoena should follow the notice in giving names of witnesses, and fixing time and places.'^ 5. If neither of the officers named in Section 110 are residing in the district, then any two justices of the peace may take testimony,^ Depositions may be taken by consent, without notice and before any officer authorized by law to take depositions in common-law or civil actions or in chan- cery.* 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 Avithin the county in which he resides or may be served.' Witnesses failing to attend and testify in obedience to a subpoena duly served, unless prevented by sickness or un- avoidable necessity, are liable in damages and also to indict- ment and punishment for a misdemeanor.^ 6. The statute further provides for taking the depositions of witnesses residing outside of the district and beyond the reach of a subpoena. Depositions outside of the district may 1 R. S., § 117. [A United States Commissioner cannot take testimony except by written consent of the parties. Stolbrand v. Aikiu, 3 Ells., 603.] 2R.S., §§108, 109,110,111. 3RS., §112. 4R s., §iia 5R.S., §§114, 115. 6R.a, §116. 328 BLEOTIONS. [chap. XIII. be taken before any oflBcer authorized to take testimony in contested election cases.^ 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 speci- fied in Section 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 attends, the depositions may be taken be- fore and certified by him alone. At the taking of testimony by deposition or otherwise, either party may appear in per- son or by attorney.^ 9. As to the manner of the examination of witnesses the statute is not very clear.' The language is, that " all wit- nesses who attend," etc., " shall be examined hy the officer^^ etc. This should no doubt be construed simply as requiring the examination to be conducted he/ore the officer, and not as requiring him to propound the questions to witnesses. It will be seen that this section requires witnesses to be ex- amined " touching all such matters respecting the election about to be contested as shall be proposed hy either of the parties or their agents. And Section 122 provides that the officer " shall cause the testimony of the witnesses, together with the qvsstions proposed hy the parties or their agents, to be reduced to writing," etc. From all which it seems clear that witnesses are to be examined before the proper officer, 1 R. S., S 117. »R.S.,§§118, 119. sSeeRS., §12a CHAP. XIII.] CONTESTED ELECTIONS. 329 and under his direction, and that the parties or their attor- neys may appear and propound any proper questions. In the absence of the officer named in the notice, and who issued the subpoena, depositions may be taken before any other oflficer who is authorized to issue such subpoena, or by any officer who may be agreed upon by the parties. And this rule applies as well to testimony taken within the district as to that taken without the district, i 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 rele- vancy.* 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.* Section 123 pro- vides 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.* 11. The notice to take depositions with the proof or ac- knowledgment of service thereof, and a copy of the subpoena when one has been served, are to be attached to the deposi- tions 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 Kepre- sentatives.* 12. It is the duty of the officer who takes testimony to be used in a contested election case, without unnecessary 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."^ If the testimony of a number of witnesses is taken before the same 1 R. S. § 120. » R. S. § 131. » R. S. § 123. * R. S. § 124. ^ R. s. §§ 125, laeL « R. S. § 127. 330 ELECTIONS. [chap. xhi. officer, he may delay the sending forward of the testimony until all have been examined — but must not delay its trans- mission 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 elec- tion 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 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 each witness was duly attested by him 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. The clerk of the House of Representatives upon the receipt of the testimony in a contested election case, shall, after giving notice to the parties, open the sealed packages in the presence of the parties or their attorneys if they attend. The parties are then to agree, if possible, what portions of the testimony is to be printed, and if they can not agree or if either party fails to attend, the clerk shall determine that question, and cause the printing to be done. The clerk must preserve the portions of the testimony not printed. As soon as the testimony in any case is printed, the clerk shall furnish two copies thereof to each of the parties. Brief are to be promptly filed.* » Act in relation to contested elections approved March 2, 1887. Acts CHAP. XIII.] CONTESTED ELECTIONS. 331 § 449. Although the acts of Congress in rela.Mon to taking evidence in contested election cases, are not absolutely binding upon the House of Representatives, yet they are to be followed as a rule and not disregarded or departed from, except in extraordinary cases. A contestant must take his testimony under the statute, 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. ^ The statute as it now stands after the recent amendments, affords an opportunity 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 com- plete and perfect justice, and it will no doubt therefore be adhered to as furnishing the best possible guide, for institut- ing and carrying forward inquiries of this character.'^ § 450. Testimony to be used in a case of contested elec- tion in the House of Representatives of the United States must, under the law as it stood prior to the recent amend- ments, 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.' 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 can not 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 thirty days, but not after the termination of that period. 2d Sess. 49th Cong., p. 445. As to evidence in contested election cases generally, see Chapter XIV, Contested Elections — Evidence. 1 Brooks V. Davis, 1 Bart., 244. 2[Bisbee u Finley, 2 Ells., 172.] * Knox V. Blair, 1 Bart., 521 ; Todd v. Jayne, 1 Bart, 555w 332 ELECTIONS. [cnAP. xin. § 451. In VaUandigham v. Campbell^ the rule that a sitting member must use 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 Con- gress, 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 v. Edwards.^ The statute upon this subject was, however, by an act approved January 10, 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 testi- mony in rebuttal only. § 452. The House of Kepresentatiyes 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 Oiddmgs v. darhj^iu 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, exercising the functions and receiving the emoluments of the office in (question. In a 1 1 Bart., 22a 2 [Smith, 18.] »[Thobe V. Carlisle, Mob., 423; Mason v. Gates, 2 Ells., &] * [Smith, 91.] CHAP. XIII.] CONTESTED ELECTIONS. 333 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' dura- tion, and would be necessarily far spent before a final decision could be reached. It does not follow from these considera- tions 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." §453. In a contested election case in Congress an appli- cation by the sitting member for an extension of time to take testimony, made after the time allowed by law for taking testi- mony has expired, and after the term of office contested for has well nigh expired, it is necessary, in addition to showing great 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 sufllcient reason given for failing to produce them.i § 454. A contested election case, whatever the form of the proceeding may be, is in its essence a proceeding in * Qiddings v. Clark, supra. See same report for difcussion as to what constitutes the proper degree of diligence in such a case. 334 ELECTIONS. [chap. XIII. which the people — the constituency — are primarily and prin- cipally interested. It is not a suit for the adjudication and settlement of private rights oimply. It follows that the par- ties to the record can not, by stipulation or otherwise, dis- continue 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 in- terest of the public to do so. * § 456. In a case of quo warranto instituted for the pur- pose 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 repre- sent 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 state- ment of facts agreed to between the relator and the respond- ent, and not signed by the Attorney General.* 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. § 456. 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 dis- cretion believe that the ends of justice will be subserved thereby ,3yet, as we have seen, the ordinary rules governing applications for continuances, in the nature of the case, can not apply to a litigation of this kind. The proceedings muDt 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 the court.* 1 Mann u Cassiday, 1 Brewst., 43; People v. Holden, 28 Cal., 139; Kneass' Case, 2 Pars., 570; Collings' Case, Bright Elec. Ca&, 513. ^ People V. Pratt, 15 Mich., 184; Crawford v. Molitor, 23 Mich., 341. »[Lord V. Dunster, 79 CaL, 477.J * Keller v. Chapman, 84 CaL, 635. [Section 4710 of the Revised Stat- CHAP. XIII.] CONTESTED ELECTIONS. 336 [§ 4o6a. It has been held by the House of Kepresenta- tives of the United States, that where, pending a contest in the House, and after the pleadings are made up and the proof taken, the contestee dies and a successor is elected to fill his unexpired term, the seat of the successor depends upon the election of the original contestee, and that he is in consequence bound by the pleadings and proof in the original contest and by a decision afterwards rendered therein.] ^ § 457. 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.^ 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 con- struction will be followed by the Federal authorities. This rule is absolutely necessary to the harmonious working of our complex governments, State and I^ational, and your com- mittee are not disposed to be the first to depart from it." And in the case of Burch v. Van JSorn^ the House re- fused to go into an inquiry as to the validity of the new Constitution of Missouri, upon the ground that it had been utes of Missouri, which requires the contest of an election to be tried at the first term of the court held fifteen days after the oflScial count of the votes and service of notice of contest, unless continued by con- sent or for good caiise shown, is directory only. Kraleman v. Seppel, 57 Mo. App., 598.] 1 [Mackey v. O'Connor, 2 Ells., 561.] 2 42d Congress. ' 2 Bart., 205. [For a discussion of this rule, see majority and minority committee reports in Lynch v. Chalmers, 2 Ells., 338.] 336 ELECTIONS. [chap. XIII. recognized as valid by the people and by all the depart- ments of the State government. [§ 4:57a. In the case of Clayton v. BrecJcenridge, the ques- tion arose whether the House of Kepresentatives should be bound by the result of the trial of a criminal case where parties charged with election frauds had been acquitted. It was there held that such a trial was not an adjudication binding on the House in a case involving the same frauds.] ^ § 458. When a contest is tried before a legislative body, under a law providing a special mode of proceeding, costs will not be allowed except by the action of such legislative body. They cannot be recovered by suit.' 1 [Row., 679.] 'Garrard v. Gallagher, 11 Nev., 382. CHAPTER XIV. CONTESTED ELECTIONS— EVIDENCE. 459. Ordinary rules of evidence apply. 459. Presumption as to oflficial integrity. 460. Record evidence. 461. State laws rules of decision in Congress. 462. When necessary to prove number of qualified electors in given territory. 463. Census of population. 464. Official list of freeholders under Virginia statute. 465. Land books of the county under same. 466. Official list of registered voters. 466a. Vote accepted by the judges of election prima /acie legal. 467. Presumption that person alien born who has voted was qualified. 468. Want of naturalization, how established. 468. Fraudulent naturalization papers. 469. May be attacked by parol evidence. 469. Proof of non-residence. 470. Registration not conclusive of right* 471. Ballots as evidence. 473. Provisions for safe keeping must be strictly followed. 473, 474. Rule as to proof that ballots have not been tampered with. 475. Construction of statutes requiring preservation of ballota 476,477. Recount. 478. When ballots lose their character as primary evidence. 479. Loss or destruction of ballots, secondary evidence. 480. Judge Cooley's views. 481. Importance of rule requiring proof of preservation and produc- tion of the identical ballots cast. 482. Inspection of ballot, when ordered. 482. Correction of return by reference to ballot. 83, 484. Declarations of illegal voters as to how they voted. ^84 Conflict of authority as to their admissibility. )i84 The English rule. 484. Rule in New York and Wisconsin. 484. Decisions in other States. 485-487. Discussion of the question in the House of Representatives of the United States. 488, 489. Preservation of secrecy of ballot. S3 338 ELECTIONS. [chap. XIV. § 489-491. Voter cannot be compelled to divulge for whom he voted. 492-494 But this rule does not protect one who votes illegally. 492. Voter may waive his privilege. 493. Circumstantial evidence admissible. 495. Rvde as to disposition of illegal votes in the absence of proof showing for whom they were cast. 496. When new election should be ordered. 497. Consequences of neglect to furnish proof within reach of party. 498. Ballots marked in violation of law generally admissible. 499. Character of proof required to vitiate a vote received and counted by the election board. 500. Weight to be given to decision of judges of election, 501. Canvass by city council prima facie evidence. 502. General rule for solving questions of evidence in contested eleo- * tion cases. 503. Returns and election papers may be Impeached upon quo war- ranta 503. Parol evidence admissible to impeach. 504r-506. Tally-sheets, if required by law to be kept, admissible in evidence. 507. Poll books prima facie evidence only. 507. May be impeached for fraud. 508. Return must be signed. 509. Held admissible for some purposes, though unsigned, If otheiv wise proved. 510. 511. Effect of entire disregard of the law by election officers. 512. Evidence of appointment of inspectors of election. 513. Proof of true vote by secondary evidence. 518. Correction of final return by reference to primary returns. 514 Absence of oath will not vitiate return. 515. Rule as to setting aside returns. 515-517. Illustrations. 518. Distinction between rejecting return and setting aside election. 519. State statute regulating elections not binding upon Congress. 6S0. But decisions of State tribunals under such statutes jpn'ma facie evidence. 521. Rule as to proving votes when return has been rejected. 522. Failure of the officers of one of several precincts to make return. 523. 524 Rule as to rejection of entire poll. 525. Proof that officers of election were not sworn, 526. Proof of alteration of return. 527. Not necessary to show intentional wrong on part of election officer in rejecting vote. 5S7a. Rule in House of Representatives as to counting votes of legal voters rejected at the polls. 5275. Rule in Arkansas and other States. OHAP. irV.] CONTESTED ELECTIONS. 839 § 459. The general rule is that the ordinary rules of evi- dence 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 re- sult 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 re- butted and overcome by proof. If a disqualified voter de- clines to answer as to how he voted, or if he cannot be found so as to be examined as a witness, a good deal of latitude should be allowed in showing the fact by circumstantial evi- dence. 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.^ § 460. Eecord evidence is, of course, admissible on the trial of a case of contested election in the House of Kepresenta- tives of the United States, to the same extent and for like pur- poses 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 tes- timony, in the presence of the opposite party, and put in evi- dence within the time required for completing the taking of the testimony in the case. And this is undoubtedly the cor- 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, 1 [Garrison v. Mayo, Mob., 55; Rigsbee v. Durham, 99 N. C, 341.] 2 Thompson v, Ewing, 1 Brewst., 68-9. As to evidence in prosecutions for violation of election laws, see Chap. XVIIL 340 ELECTIONS. [chap. XIV. offer such record, or a duly authenticated copy thereof, in evi- dence, and cause it to be spread upon the record. It is im- possible 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 ad- missible as evidence in the courts of justice of the country, where a similar issue is involved, may be admitted in a con- tested election case in the House of Eepresentatives. § 461. Prior to the adoption by Congress of any statute regulating the mode of procuring evidence in contested elec- tion cases, the practice was conformed as far as possible to the laws of the State from which any case might be brought.- 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 Con- stitution.' § 462. "Where it appears clearly that a statute requires the assent of two-thirds or any other proportion of the qual- ified electors residing in a particular territory to be expressed by ballot, it may become necessary, in order to determine the result, to ascertain the whole number of persons within such territory possessing, at the time of the election, the qualifications of electors; and in determining this question the latest registration books kept under a law of the State are competent evidence, subject, however, to be corrected by proof to show deaths, removals, etc., subsequently to the reg- istration.* Where, however, the statute provides in general terms that the election shall be determined by a " majority 1 [The family record showing the date of birth of a person whose age is a material question is better evidence than any statement of its con- tents, and if relied upon should be produced and properly identified. Kreitz v. Behrensmeyer, 125 IlL, 141.] 2 Botts V. Jones, 1 Bart., 73. 8 See case of Tennessee Representatives, 42d Congress. < Hawkins v. Carroll Co., 50 Miss., 735. CHAP. XIV.] CONTESTED ELECTIONS. 341 of the electors," it will be held to mean a majority of the electors voting; and in ascertaining the result under such a statute, no inquiry as to the whole number of persons en- titled to vote will be necessary or proper.^ § 463. A census of population so classified as to show the number of persons in each county possessing the quali- fications of voters, and taken by sworn oflQcers, 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.'' 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 wiU 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. § 464. A similar rule to the one here stated was adopted in the early case of Taliaferro v. Himgerford^ where it was held that the land list prepared under a statute of Yirginia, and required by law to give the names of all freeholders for the year prior to an election, is proper to be considered as prima facie evidence of the number of voters in a county, but not conclusive. And in Blair v. Barrett^ it was held 1 Everett v. Smith, 32 Minn., 53. 2Norris v. Handley, 42d Congress; Niblaok r. Walls, 43d Ck>ngress; [Smith, 101]. 3C1. &H., 346. « 1 Bart, 30a 3i2 ELECTIONS. [chap. XIV. that the city government of St, Louis, having ordered a cen- sus to be taken with statistics of nationality and naturaliza- tion, such census, and the testimony of the census taker, were admissible in evidence. § 465. Under a statute of Yirginia requiring that all vot- ers shall be freeholders, it was held that the land books of the county were admissible in evidence to show who were the freeholders, they being regularly certified by the clerk of the county to be correct. These books were made out annually under the laws of Yirginia, and were intended to contain a list of all the separate tracts of land and the owners' names.^ These books were undoubtedly admissible upon the same principle that census returns are admissible in evidence; but they are oxAj prima facie and approxi- mately 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. § 466. "Where the statute provides for a list of voters to be prepared by the selectmen of the town and used at the election, such list is to be regarded as an oflGLcial 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 pro- duce the list.2 And it was further held in the same case that the fact that a person's name is on the voting list is only prima facie evidence of his right to vote, and the se- lectmen may strike off the name and reject the vote, if they can prove that he was not entitled to vote. See also Hv/mph- rey v. Glingman? [§ 466a. A vote accepted by the judges or commissioners holding an election is prima facie legal. Before it can be thrown out for illegality it must be satisfactorily shown to 1 Loyall V. Newton, CI. & H., 520. 2 Harris v. Granville, Whitcomb et al,, 4 Gray (Mass.), 433. »5Metc., 163, 168. CHAP. XIV.] CONTESTED Ei^ECTIONS. 343 have been cast by one not legally qualified to vote — that is to say, the presumption of legality must be overcome by a clear preponderance of competent evidence.] ^ § 467. 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 that 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.' The very great difficulty, 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 inten- tion 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 hun- dreds of courts possessing the power to grant naturalization ; 1 [Smith V. Jackson, Row., 9; Lowe v. Wheeler, 3 Ells., 61; Findley v. Bisbee, 1 Ells., 74; Perry v. Ryan, 68 III, 172,] 2 [Gumm V. Hubbard, 97 Mo., 311. Where the statute of a State re- quires that before a person alien born can be permitted to vote he must produce to the proper officers a duly sealed and certified copy of his declaration of intention, he must produce such copy, even if not chal- lenged, and a failure to do so will render his vote void. Bisbee v. Fin- ley, 2 Ells., 173.] ' New Jersey Case, 1 Bart., 19, 34 544 ELECTIONS. [chap. XIV. 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 prac- tically impossible. § 468. 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 in blank by the clerk of a circuit court, and so de- livered by him to a justice of the peace, to be by him filled out with the date and names of the persons subscribing them, etc., and the oath was in fact administered by the jus- tice, 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.^ 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 ii always competent to show that the parties were not within the ju- risdiction of the court ; and if the act of pretended naturali- zation 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 sig- nature and seal is conclusive. Such a rule would permit the party who committed the fraud to protect himself by his own fraudulent certificate. § 469. 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 de- pend upon circumstances. If the district or territory within i State V. Stumpf, 23 Wis., 630. ■CHAP. XIV.] CONTESTED ELECTIONS. 345 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 inhabitants 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 as sufficient to shift the burden upon the party claiming that the vote of such alleged non-resident be counted, and require him to show affirmatively that he is a honajide 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.^ 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 indi- vidual 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. § 470. The fact that a voter has been registered under a statute providing for the registration of voters, and author izing a board of registration to inquire and decide as to the qualifications of persons applying for registration, is by no means conclusive as to his right. It is competent to intro- duce evidence on the trial of an election contest to show 1 Letcher v, Moore, CL «fe H., 715, 749. 346 ELECTIONS. [chap. XIV. that persons registered as voters under such a statute were nevertheless not legal voters.^ § 471. "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 pro- visions which provide for the safe keeping of such ballots, must be followed with great care. The danger that the bal- lots may be tampered with after the count is made known, especially if the vote is very close, is so great that no oppor- tunity 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.'^ In Butler v. Leh- man^ supra^ the House of Representatives, after a full dis- cussion, sustained the minority of the committee in rejecting a recount, on the ground that the ballot-boxes had not been so kept as to rebut a reasonable presumption that they had been tampered with.' § 472. In the case of People v. Livingstone,^ the Court of Appeals of Kew York held that when a ballot-box and the ballots therein are offered in evidence, and there is proof that the box has not been kept in all respects as required by law, this is not of itself sufficient under the statute of that State to authorize the court to exclude the evidence from the consideration of the jury.* In such a case the court, 1 Preston v. Culbertson, 58 Cal., 198; [Langhammer v. Munter, 80 Md., 518J. 2 See Gooding u Wilson, Smith, 79; Butler v. Lehman,! Bart., 353; Kline v. Verree, Id., 381; [Hughes v. Holman, 230reg., 48; Tibbe v. Smith, 108 Cal., 101; Hartman v. Young, 17 Oreg., 150]. * Upon this subject see Hudson v. Solomon, 19 Kan., 177. <80Ky., 66. 5 [Apple V. Bancroft, 158 IlL, 649; Sone v. Williams, 130 Mo., 530; Da- vis V. State, 75 Tex., 420.] CHAf. XIV.] CONTESTED ELECTIONS. 347 with some hesitation, concluded that it should be left to the jury to determine, upon all the circumstances of the case, whether the ballots constitute more reliable evidence than the inspector's certificate.^ It was, however, in the same case, further held that the party offering such ballots in evidence must show affirmatively that they have not been tampered with, and that they are the identical ballots cast at the election in question,' " Every consideration of public policy," says Church, Chief Justice, " as well as the ordinary rules of evidence, require that the party offering this evi- dence should establish the fact that the ballots are genuine." The burden of proof in such a case does not rest upon the party objecting to the ballots as evidence.' § 473. "Whether the provisions of a statute providing for the preservation of ballots after an election are mandatory, or only directory, was one of the principal questions in this case, and is considered at considerable length with the result above indicated. So much depends upon the terms of the particular statute to be construed, that it is impossible to lay down a general rule applicable to all cases; but the better opinion seems to be that if the deviation from the statutory requirements relative to the manner of preserving the ballots has been such as necessarily to expose them to the public or unauthorized persons, the court should exclude them ; but if the deviations have been slight, or of such a character as not necessarily to render doubtful the identity of the ballots, the question of their identity may well go to the jury to be determined upon all the evidence.* 1 [Ferguson v. Henry (la.), 64 N. W. Rep., 393.] 2[Hartman v. Young, 17 Oreg., 150; Beall v. Albert, 159 111., 126; Fen- ton V. Scott, 17 Oreg., 189.] 3 [In Wisconsin ballots are required to be totally destroyed after a certain time. Where this has not been done, after the time has elapsed such ballots have no legal existence, and are not admissible in evidence in an action to try title to an office. State v. Bate, 70 Wis., 409.] *[Mallett V. Plumb, 60 Conn., 353; Henderson v. Albright (Tex. Ct. App.), 34 S. W. Rep., 992; Fishback v. Bramel (Wyo.), 44 Pao. Rep., 840.] 348 BLEonoNs. [chap. xiy. § 474. Although the general rule is that the ballots them- selves are the best evidence of the number of votes cast, and for whom cast, yet this rule can have no application to a case where the ballots have been tampered with after they were deposited in the ballot-box. In such a case the value of the ballots as evidence is almost totally destroyed, and the returns made by the officers of election presiding at the polls may become better evidence than the ballots.^ It has ac- cordingly been held that where the ballots cast at an elec- tion were not returned sealed, and there was evidence tending to show that the package of ballots had been opened and changed after they were received by the clerk, the board of canvassers, whose duty it was to declare the result of the election, were at liberty to determine who was elected upon inspection of the returns made by the officers of election, and a court trying a contest growing out of said election adopted the result arrived at in this mode by the board of canvassers.* § 475. In California there was a statute requiring the pres- ervation of the ballots in the clerk's office for six months. In the same act was a provision requiring the preservation of the poll list and tally paper, with the certificates of the officers attached. Under this statute the case of People v. Holden ^ 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 1 [Andrews v. Judge of Probate, 74 Mich., 278; Bisbee v. Finley, 2 Ells., 172.] » People V. Burden, 45 CaL, 241. » 28 CaL, 12a CHAP. XIV.] CONTESTED ELECTIONS. 349 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 vot- ing. 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 tempta- tion to tear the name of Holden from a few tickets, and thus change the result, was unquestionably very great, while it could hardly have been supposed by the oflBcers who cer- tified the township returns that to change two or three votes would change the result. The soundness of the ruling is seri- ously doubted by Mr. Brightley, in his note to this case,^ and it is quite certain that the precedent is quite an unsafe one. Before the ballots should be allowed in evidence to overturn the ofiBcial 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 in- asmuch as the ballots are counted by the board of canvassers immediately upon the closing of the polls, and generally be- fore 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 1 Bright Elec. Cas., 484 350 ELECTIONS. [chap. HT. 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 votes 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. § 476. In a more recent case, arising under the same stat- ute, the Supreme Court of California refused to accept the result of a recount because it was not shown that the ballots had been in the interim sealed up and preserved as required by law.^ § 477. The case of Archer v. Allen ^ 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 some four 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 con- ceded 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 bal- lots counted at the second and unofficial canvass were the identical ballots originally deposited in the box. The mi- nority 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. ^ People V. Burden, 45 CaL, 241. See, also, Hudson v, Solomon, 10 Kan., 177. 21 Bart, 169. CHAP. XIV.] CONTESTED ELECTIONS. 361 § 4Y8. The original ballots are undoubtedly the best evi- dence where their identity is clearly established.^ The gov- erning rules are thus well stated by Brewer, Judge, in Hud- son V. Solomon: " 1st. As to the ballots cast at an election and a canvass of those ballots by the election officers, the former are the primary and controlling evidence. " 2d. In order to continue the ballots controlling as evi- dence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable prob- ability of their having been changed or tampered with." ' If there has been an opportunity for tampering with ballots, they lose their character as primary evidence.' § 479. Where the poll books, tally sheets and ballots are all lost or destroyed, secondary evidence is admissible,* and in such a case the voters themselves may, if they choose, tes- tify as to how they voted; but they cannot be compelled to do so and thus violate the secrecy of the ballot. So, also, in such a case, the judges and clerks who canvassed the vote may testify as to the number of votes given to each person voted for ; and even spectators who were present at the count and heard the result announced and inspected the papers pre- 1 Hudson V. Solomon, 19 Kan., 177; Dorey v. Lynn, 31 Kan., 758; [Mo- Duffier. Davidson, Mob., 577; Murphy v. Battle, 155 111., 183; Albert v. Twohig, 35 Neb., 563]. 2 See, also, on the same subject, Newton v. Newell, 26 Minn., 529; Cog- land V. Beard, 65 Cal., 58. ' Kingery v. Berry, 94 111., 515; [Frederick v. Wilson (Minority Report), Mob., 406; Atkinson v. Pendleton, Row., 45; Martin v. Miles, 40 Neb., 185; Spidle V. McCracken, 45 Kan., 356. The return of the judges of election in an election contest is not conclusive, and, the ballots not having been so kept that they might not have been changed, the parol evidence of the judges of election as to the result of the ballots as counted and declared at the polls is admissible. Stemper v, Higgins, 88 Minn., 222]. * [Merritt u Hinton, 55 Ark., 12.] 352 ELECTIONS. [chap. XIV. pared and signed by the oflBcers recording the result are competent witnesses in such a case.^ § 480. Concerning the admissibility of the ballots them- selves, in evidence, in a case of contested election, Judge Cooley, in his Constitutional Limitations,^ has this to say : "But back of t\n& prima facie case (made by the certifi- cate 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 hallots are still in existence, and have heen Icept as required hy law. If, however, the ballots have not been kept as re- quired 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 circum- stances of the case, whether they constitute more reliable evidence than the inspectors' certificate, which is usually pre- pared 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." § 481. It has been held by the Supreme Court of Missis- sippi that " evidence that one of the registrars, being intoxi- cated, 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." * This decision was put upon the ground that the misconduct of the officer was a mere irregularity, and did not, ihQveiovQ, prima facie, affect 1 Dixon V. Orr, 49 Ark., 238; 4 S. K Rep., 774; Beardstown v. Virginia, 81 111., 541. 2 Page 625. 3 [Powell V. Holman, 50 Ark., 85. Where spoiled ballots were inter- mingled with genuine ballots so as not to be distinguishable, held, that the ballots could not be received to set aside the returns. Hendee V. Heyden, 42 Neb., 760.] ♦ Pradat v. Ramsay, 47 Miss., 24. CHAP. XIV.] CONTESTED ELECTIONS. 353 the result ; but this was evidently a misapplication of that rule. One of the most important and imperative require- ments 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 rea- son 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 oflBcers to hold the ballot-boxes a number of days before making pub- lic the canvass. If such laws had been framed for the pur- pose of enabling corrupt parties to perpetrate frauds, they could scarcely have been more aptly framed.^ 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 presump- tions 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 v. Bamsay, sujpra^ the pre- sumption 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. § 482. Under the statutes of some of the States the bal- lot is numbered to correspond with the number of the voter by whom it is deposited, and by this means it is possible to ascertain how each elector has voted.^ When a contest arises ^ Wallace v. Simpson, 42d Congress. 2 [Where it was charged that the ballots of certain electors were changed, " an inspection and comparison of the ballots with the poll 23 354 ELECTIONS. [chap. XIV. in any of the States where a statute of this kind is in force, it often happens that one or the other party will desire an inspection of ballots cast by persons alleged to have voted illegally. In such cases an inspection of a voter's ballot should not be ordered until the evidence is all in, and it is shown with reasonable certainty that the ballot has been ille- gally cast and that an examination of the ballot is a matter material to the determination of the contest.^ It was held in the case of Bell v. Snyder'^ that where the return failed to state for what office the ballots were cast, the ballots themselves showing that they were cast for oon- testee for Kepreseutative in Congress, they should be counted by the House. § 483. It often appears in the course of the trial of a case of contested election that votes have been cast by per- sons 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 authori- ties, though not entirely uniform, are generally in favor of admitting such declarations, and perhaps the weight of au- thority 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.' § 484. In N^ew York and in Wisconsin the English rule seems to have been adopted and such declarations admitted on the ground that the voter may be considered a party to the contest in such sense as to make his declarations competent lists should be allowed in connection with the oral evidence in refer- ence thereta" Clan ton v. Ryan, 14 Colo., 419.] 1 JBe McCullough, 12 Phila. (Pa.), 570. 2 Contested Elec. Cas., 1871 to 1876, p. 247. 'State V. Olin, 23 Wis., 309, 319; The New Jersey Case, 1 Bart, 19; Vallandigham v. Campbell, Id., 230, and cases there cited; [Crabb v. Orth, 133 Ind., 11; Wallace v. McKinley, Mob., 185]. CHAP. XIV.] OOKTESTED ELECTIONS. 8&5 evidence.^ In Illinois the English rule has been modified, and the law of that State is that the voter may be considered a party as against the contestant, and that his declarations showing his want of qualification to vote may be shown after first proving by evidence aliunde that he voted adversely to the contestant.^ In Arkansas also the English rule has been adopted in a modified form. It is there held that declara- tions by voters that they had voted illegally, made at or near the time and place of the election, may be received as part of the res gestae of the election, and as tending to show a fraudu- lent combination for the purpose of carrying the election by f raud'^ — there being other evidence tending to show the same thing.' In Kansas the English rule is entirely repudiated, and it is there held that statements of persons who had voted, made to third persons, as to the number of times and the names under which they claimed to have voted, were inadmissible.* The Supreme Court of Kansas said : " It is the testimony of what other persons told the wit- ness, 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 gestce; nor do they accompany a princi- pal fact, so as to qualify or explain it. * * * We have examined the cases of People v. Pease^ State v. Olin,^ and the note to Newland v. Graham^ and so far as they enunciate any principle contrary to the doctrine here announced we disapprove them." And the same rule substantially has been adopted in Colo- 1 People V. Pease, 27 N. Y., 45; State v. Olin, 23 Wis., 819. 2 Beardstown v. Virginia, 81 IlL, 541. 'Patton V. Coates, 41 Ark., 111. And see upon same general subject, the New Jersey Case, 1 Bart., 19; Vallandigham v. Campbell, Id., 223; Newland u Graham, 1 Bart, 5, note; S. C, 3 McCord, 230, ♦Gilleland v. Schuyler, 9 Kan., 569. 6 27N. Y., 45. 6 23 Wis., 319. 7 3 McCord, 230. 356 ELECTIONS. [chap. XTV^ rado, where such declarations by voters as to their qnalifi ca- tions, made after the election, are held to be hearsay only and inadmissible.^ § 485. The soundness of the rule which admits this species of evidence is seriously questioned in the case of Cessna v. Meyers? The report in that case presents the following ob- jections to the rule : " 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 power of an illegal voter to neutralize wrongfully two of the votes cast for a political opponent : 1st, by voting for his own 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 per- sonal. It is frequently of the slightest possible nature. If he were a party, then his admission should be competent as to the whole case — as to the votes of others, the conduct of the election officers, etc., 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 ordinary rules of evidence should be relaxed in the determination of election cases. The sitting & 1 People V. Commissioners, 7 Cola, 190. 2 42d Congress [Smith, 60]. CHAP. XIV,] CONTESTED ELECTIONS. .357 member is a party deeply interested in the establishment of his right to an honorable oflBce. The people of the district especially, and the people of the whole country, are inter- ested 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 imper- iled, by the admissions of persons not under oath, and admit- ting their own misconduct. " The practice of admitting this kind of evidence originated 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 founded. In England, as has been said, the vote was vi/va 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 fran- chise 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 ad- mission which seriously imperiled his title to his 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 vi/va voce, is studiously protected from pub- licity, 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, with- out fear of detection or punishment. " It may be said that the principle of the secret ballot 358 ELECTIONS. [chap. XIV. 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 pol- icy 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 testimony of this char- acter is this: it is not at all likely to be either true or trust- worthy. "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 fraud- ulently — 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 overcome the judgment of the election oificers, 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." CHAP. XIV.] CONTESTED ELECTIONS. 359 § 486. In Newland v. Graham^ the declarations of voters made after the election, of their having voted for the sit- ting member, were held inadmissible, and were excluded, although it was shown that, by the statute of North Caro- lina, where the election took place, voters were not com- pellable to give evidence for whom they voted. The Com- mittee 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 for whom he cast his vote, and shield himself under the statute made to pre- serve 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. § 487. In the case of Bell v. Snyder, the House of Rep- resentatives of the 43d Congress held that the declaration of a voter as to how he voted or intended to vote is com- petent testimony on the point.^ This was a case in which it appeared that certain legal voters tendered their ballots and were not permitted to vote. They therefore filed with the supervisor of the election their aifidavits, to which they attached the ballots which they had tendered and desired to vote. It was in connection with the proof of these facts that their declarations were admitted as part of the res gestoB. The case is therefore not identical with a case where illegal votes have been admitted, and the question is for whom they were cast. § 488. 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, thus enabling him to vote independently and freely, without being subject to be overawed, intimidated, or in any manner controlled by others, and protects him from 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 1 1 Bart, 5. 2 Contested Elec. Cases, 1871 to 1876, p. 251. 360 ELECTIONS. [chap. XIV. 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 voluntarily divulge it.^ § 489. 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 inasmuch as the voter himself cannot be com- pelled to disclose for whom he voted, it is but reasonable to conclude that " others who may accidentally, 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 privi- lege, 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 elector's action, it at the same time en- courages a system of espionage, by means of which the veil of secrecy may be penetrated and the voter's action dis- closed to the public." * 1 [Attorney-General v. McQuade, 94 Mich., 439; Major v. Barker (Ky.), 35 S. W. Rep., 543; Tullas v. Lane, 45 La., 383]; People v. Pease, 27 N. Y., 45, 81. 2 [Where the Constitution or statute laws of a State require uni- formity of tickets without distinguishing marks or embellishments, and tickets are printed on material of such thickness as to be dis- tinguishable, this would constitute a violation of the law. English v. Peelle, Mob., 167.] * [Ex parte Arnold, 128 Mo., 256.] ♦Pages 506, 507, CHAP. XIV.] CONTESTED ELECTIONS. 861 § 490. The case of People v. Cicott ^ is cited to sustain the views just expressed. At the same time the author con- cedes that in legislative bodies it has been held that, when a voter refuses to disclose for whom he voted, evidence is ad- missible 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 per- son claiming the right to vote, for one or the other of the following purposes : 1. When it is alleged that the person casting such ballot was not a legal voter, and for the purpose of excluding it. 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 per- son not qualified to vote, as we have elsewhere seen, it is necessary to show^rs^ 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 re- member, 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 giv- ing testimony, because the evidence is sought as a means of protecting their rights and defeating an alleged fraud by rea- son 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, un- less he has himself, at the time of voting, voluntarily made 1 16 Mich., 382. 362 ELEOTION8. [cHAP. XIV. public his ballot, and its contents, in which case such con- tents may be proven by the testimony of those persons to whom they were voluntarily communicated.^ § 491. In Reed v, Kneass ^ 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 by refusing to testify to its contents, he is at liberty to 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 chang- ing ballots after they are cast, altogether deprive the major- ity 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 for District Attorney, whereas, according to the oflBcial re- turns, 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.' § 492. 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 1 See, also, §§ 488, 489. 2 2 Pars., 584; S. C, Bright. Elec Cas., 868. » Raid V. Julian, 2 Bart., 822; Loyall v. Newton, OL * H., 522; [Bell v, Snyder, Smith, 247]. < [State V. Kraft, 18 Jreg., 550.] CHAP. XIV.] OONTEBTED ELECTIONS. 363 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.^ An illegal voter may, however, de- cline to answer for whom he voted, on the ground that his answer might criminate himself, but in such case the con- tents of the ballot may be shown by other testimony .^ And a legal voter may waive his privilege and voluntarily testify as to the persons for whom he has voted.' § 493. 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.* And within this rule it was held in People v. 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 particular political party, or obtained his ballot from a per- son who was actively supporting a particular candidate or a particular ticket.® § 494. It is very clear that the rule which, upon grounds of public policy, protects the legal voter against being com- pelled to disclose for whom he voted, does not protect a per- son who has voted illegally from making such disclosure. To give to that rule this wide scope would be to make it shield 1 Case of Locust Ward Election, 4 Penn. L. J., 349; People v. Cicott, 16 Mich., 282; State v. Hilmantel, 23 Wis., 432; [Pedigo v. Grimes, 113 Ind., 148]. 2 State V. Olin, 23 Wis., 309. 3 Reed v. Kneass, 2 Pars. (Phila.), 584: S. C, Bright. Elec. Caa, 366. * People V. Pease, 27 N. Y., 45. And see Cushing's Am. Pari. Law, §§ 199, 210; [Boyer v. Teague, 106 N. C, 576. In the absence of direct proof, evidence showing to what political party a voter belonged, whose election he advocated, whose friends maintained his right to vote, and kindred testimony, has been held admissible. What the voter said at the time of voting is admissible as a part of the res gestae. Smith v. Jackson, Row., 9; Cook v. Cutts, 2 Ells., 243]. * Supra. * Notwithstanding the high authority of People v. Pease, it is apparent that the distinction between asking a voter for whom he voted and ask- ing him for whom he intended to vote is very narrow, and probably not substantial [Bisbee v. Finley, 2 Ells., 172.] 364 BLBonoNs. ■ [chap. xrr. alike the right and the wrong, the honest and the dishonest. It was intended to protect the inviolable secrecy of an honest ballot, and thus the purity of the ballot-box. It was not in- tended 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 per- son or persons for whom he voted.^ § 495. 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 major- ity.'^ 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 di^asion, and not from the candidate having the largest number.' 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 iMcDaniel's Case, 3 Pa, Law Journal, 310; S. C, Bright. Elec. Cas., 248. [For a general discussion of this question, see note to People v. Pease, 84 Am. Dec, 268.] ^McDaniel's Case, supra. •Shepherd v. Gibbons, 2 Brewst, 128; MoDaniel's Case, 8 Pa. L. J., 310; Cushing's Elec Cas., 58a < [Heyfron v. Mahoney, 9 Mont, 497; Attorney-General v. May, 99 Mich., 588; Russell v. McDowell, 83 Cal, 70; Finley v. Bisbee, 1 Ells., 74. Where ballots are found in excess of the names on the poll lists, and the in- spectors fail to draw them out as required by the statute of Michigan, they should on the trial of the cause be so apportioned that each can- didate shall have deducted a share of them proportioned according to the whole number of votes in his favor; the probability being that the legal and illegal votes have been cast ratably for the several candidates. People V. Cicott, 16 Mich., 283; Campbell v. Morey, Mob., 215. See, also, Hurd V. Romeis, Mob., 429. In the case of Little v. State, 75 Tex., 616, the Supreme Court of Texas sustained the ruling of the trial court in refusing to give this instruction: "Before you can reject an illegal CHAP. XIV ] CONTESTED ELECTIONS. 365 that John Doe and Kichard Eoe are competing candidates for an office, and that the official canvass shows For John Doe, 625 votes. For Kichard Koe, 575 votes. Total vote, 1,200 Majority for Doe, 50 But there is proof that one hundred and twenty 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 re- turned vote, and hence each candidate loses ten per cent, of the vote certified to him. By this rule John Doe will lose sixty-two and one-half votes, and Kichard Koe fifty-seven and one-half votes, and the result as thus reached is as fol- lows: Doe's certified vote, 625 Deduct illegal votes, 62J Total vote, 662^ Koe's certified vote, 575 Deduct illegal votes, 67i^ Total vote, 517^ Majority for Doe, 45 § 496. 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 declar- ing the office vacant ; but it is manifest that it may some- times 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 vote, you must know for whom it was polled. It cannot be taken from the majority candidate, unless proven to have been polled for him." The ruling was sustained, however, on the one ground that there was sufficient evidence before the jury to authorize them to find for either party without knowing for whom any particular vote was cast.] 366 ELECTIONS. [chap. XTV. 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 circumstan- tial evidence, for whom each illegal vote was cast. In a legislative body having power to order a new elec- tion, and in any other tribunal having the same power, it will doubtless, generally, be regarded as safer and more con- ducive to the ends of justice to order such new election than to reach a result by the application of the rule above stated.^ § 497. It would seem, therefore, that in a case where the number of bad votes proven is suflBcient 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 pro- portion 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 elec- tion void, and seeking a decision by an appeal to the elect- ors, 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 resorted to, 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 1 [Finley v. Bisbee, 1 Ells., 74] CHAP, XTV.] CONTESTED ELECTIONS. 867 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 oc- casioned by deducting them from his own vote.^ This is the principle involved in the case of Duffey^ 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 ac- cording to law, then prima facie 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 ; other- wise 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 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 di&- 1 [Piatt V. Goode, Smith, 650.] UBrewst., 531. 368 ELECTIONS. [chap. XIV. close 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 impossible 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 dili- gence to show for whom they were cast — a question which is discussed in the preceding sections. § 498. 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 elec- tion 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 CHAP. XIT.] CONTESTED ELECTIONS. 369 of McKenzie v. Braxton^ and Giddings v. Clarh^ in the 4:2d 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 io 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 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." § 499. In the report of the committee of elections in Gooding v. Wilson,^ several important rules of evidence ap- plicable 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 after it has been admitted. Kor has the mere statement by a witness that a voter was or w^as not a resident, without giving facts to jus- tify 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-resi- dence of a voter on some theory of his own, or some mistake of fact, when other testimony would show with entire clear- ness that the vote w^as legal. After a vote has been admitted, something more is required to prove it illegal than to throw 1 [Smith, 19.] 2 [Smith, 91.] 3 [Smith, 79.] 24 3T0 ELECTIONS. [chap. XIV. 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." § 500. Of course some weight is to be given to the decis- ion 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, can- not be determined, and that question is not for the witness to decide, but for the court. § 601. Where the charter of a municipal corporation makes the city council judges of election, but does not de- clare their decision to be final or conclusive, the canvass of the vote and the declaration of the result made by the council \% prima fade evidence only of the right of the per- son declared elected, and the right may, in such a case, be contested by proper legal proceedings.- In such a contest the record of the count made by the city council is compe- tent, but not conclusive evidence for the defendant, and may be proved by the original record kept by the council, or a certified copy.' § 503. It is undoubtedly the policy of the law not to throw too many obstacles in the way of investigating the correctness and hona fides of election returns. On this point the Court in Reed v. Kneass* very justly observe: 1 [State V. Calvert, 98 N. C, 580; Atkinson v. Pendleton, Row., 45.] 2 [Rigsbee v. Durham, 98 N. C, 81. It is held in Michigan that where the charter of a city provides that the common council of the city shall be the judge of the election and qualification of its own members, and shall have power to determine contested elections, the decision of the council upon these questions is conclusive and final. People v. Har- shaw, 60 Mich., 200.] » Echols V. State, 56 Ala., 18L * Supra, OHAP. XrV.] CONTESTED ELECTIONS. 371 " The true policy, to maintain and perpetuate the vote by ballot, is found in jealously guarding its purity, in placing no fine-drawn metaphysical obstructions in the way of test- ing election returns charged as false and fraudulent, and in insuring 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 in vestigations, ready to do them justice if their suffrages have been tampered with b}'' fraud, or misapprehended through error." It is in the spirit of this rule that questions respecting evi- dence in contested election cases should be solved. § 503. The returns and other election papers, though con- clusive upon the canvassers, may be impeached upon a quo warranto, or other form of contested election. The very question to be determined in such a contest is frequently the truthfulness and reliability of the returns, poll books, etc. ; and the duty of the tribunal trying the case is to ascertain, not who was returned as elected, but who was in fact elected.* And in accordance with this rule it was decided in Howard v. Shields'^ that parol evidence is admissible not only to im- peach but also to correct omissions in the poll books and tally sheets, and that these documents when so corrected are sufficient ^r^way^ae evidence of the result of the elec- tion.' I:) 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. § 504. 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 1 People V. Vail, 20 Wend., 12; Commonwealth v. Commissioners, 5 Rawle, 77. 2 16 Ohio St., 184. J [Craig V. Shelley, Mob., 373.] < But the rule stated in the text presupposes that tally sheets are re- 372 ELECTIONS. [chap. XIV. evidence of the number of votes cast for each candidate.^ 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.^ But unless the law has provided means for pre- serving 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. § 505. 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 Fol- lett v. Delano^ which arose under this statute, it was held that although the return might be so defective as to be unre- liable as evidence, yet, if it did not appear affirmatively that the tally sheets were also defective and unrefiable, 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 afforded satisfactory evidence of the true result.^ 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, be- cause the tally papers were made by statute substantially a part of the return. They were papers to accompany the re- turn. They were to be certified and sent in with the return, and they were required to show the time and place of hold- ing the election ; the persons by whom it was conducted ; the number of votes cast and for whom. It might very well happen that these papers would supply informalities and de- fects in the returns themselves, and as they were not produced quired by law to be kept. Where they are not required by law to be kept by the managers of the election, if such are nevertheless kept, they are not admissible. Echols v. State, 56 Ala., 131. 1 And see, also. Powers v. Reed, 19 Ohio St, 189; [Spencer v, Morey,. Smith, 437J. 2 People V. Holden, 28 CaL, 12a »2Bart, lia CHAP. XIV.] CONTESTED ELECTIONS. 37-3 in evidence, it was properly held that they were presumed to be correct and formal, and being so, that they did afford suf- ficient 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 elec- tion 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 ac- company 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 re- turns 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 reference to what appears upon the face of the returns. § 506. The rule which admits in evidence, on the trial of a case of contested election, the original tally sheet, duly cer- tified 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 re-affirmed in Ohio in State v. Donnewirth} "We have already called attention to the pro- visions 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 admissibil- ity and value of the election papers depends largely 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. § 507. While the poll books kept by the proper officers a,VQ prima facie evidence of the number of votes cast and of 121 Ohio, 216. 2 [Under the laws of Iowa the returns made by the county auditor, to be canvassed by the county commissioners, are higher evidence than the tally sheets. Frederick v. Wilson, Mob., 401.] 374 ELECTIONS. [chap. XIV. the result of the election, they may, as ^ve have elsewhere seen, be impeached for fraud or mistake. Thus, it was held in Kansas that when the judges and clerks of an election in- tersperse fictitious names in the list of voters on the poll books, and deposit spurious ballots in the ballot-box, the poll books and returns made by such officers are worthless as evidence, and must be altogether rejected. In such a case there must be evidence aliunde showing the number of hon- est votes cast, and for whom cast, or the whole vote must be thrown out.^ § 508. In Ghrisman v. Anderson ^ it was held to be the duty of the House of Kepresentatives in the investigation of an election contest to go behind all certificates for the pur- pose 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 ad- missible, and the same point was held in Barnes v. Adams? It is the duty of the party seeking to avail himself of a vote which is not legally certified or returned, to make the nec- essary proof to supply the place of the usual formal certifi- cate and return, and, if he fails to do so, such vote cannot of course be received. § 509. It has been held that, for the purpose of showing that a person voted, the poU 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.* 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. § 510. Where the statute required that the return of the vote of each town should consist of a copy of the town rec- ord, signed by the selectmen and attested by the clerk, it was 1 Russell V. The State, 11 Kan., 308; State v. Commissioners, 85 Id., 640. 2 1 Bart, 828. 3 3 Bart., 760. * People V. Pease, 27 N. Y., 45. CHA;'. AIV.] CONTESTED ELECTIONS. 375 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.^ And of course if the proper officers omit altogether to sign a return, though it may be otherwise formal, it is void and proves nothing.'^ § 511. While a mere irregularity which does not affect the result will not vitiate the return, yet where the provis- ions 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 return must be rejected. In 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 re- turn being, until impeached, the primary evidence), and when thus proven may be counted.' § 512. A statute of New York directed that one of the inspectors of election who shall actually preside at such elec- tion, 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 1 Luce V. Mayhew, 13 Gray (Mass.), 83. 2 Barnes v. Adams, 2 Bart, 760, 771. [Where the law required the preservation of the ballots and tally lists until the next term of the Criminal or District court, as the case might be; and it was shown that neither the ballot-box returns nor other papers pertaining to the election had been filed with the clerk of the court, except that a tally sheet had been handed to him by one of the commissioners of the elec- tion, and was afterwards taken away, the House of Representatives re- fused to receive the tally sheet as a valid return. Spencer v. Morey, Smith, 437.] 'Littlefleld v. Green, 1 Chic. Leg. News, 230; Bright. Elec. Cas., 493; McKenzie v. Braxton, 42d Congress [Smith, 19]; Giddings v. Clark, Id., 91; [Smith r?. Shelley, 2 Ells., 18; Lowe u Wheeler, 2 Ells., 61; Finley V. Walls, Smith, 367]. 376 ELECTIONS. [chap. xrv. 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.^ § 513. 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.^ 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.' § 514. It was held by the majority of the committee in the House of Representatives, in Koontz v. Coffroth*' and also in Fuller v. Dawson,^ 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 pre- sumed 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.® § 515. It is impossible to state more definitely than we have done, the general rule which should govern in deter- mining 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 im- peached^ i. e., until shown to be worthless as evidence, — so worthless that the truth cannot be deduced from itJ In 1 The People v. Van Slyck, 4 Cowen, 297. 2 Case of David Bard, of Pennsylvania, CL & H., p. 116. ' The same point veas decided in the same way in Chapman v. Fergu- son, 1 Bart., 267. « 2 Bart., 25. 8 Id., 126. « Barnes v. Adams, 2 Bart., 760, and cases cited. 7 [Lloyd V. Sullivan, 9 Mont, 577; McDuffle v. Davidson, Mob., 577.] CHAP. XIV.] CONTESTED ELECTIONS. 377 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.^ § 516. In the same case, the testimony concerning another precinct consisted wholly in proof of 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 v. Julian^ the discrepancy between the vote proven, as cast for the sitting member, and the vote returned for him, being very consider- able, and there being other proof tending to show fraud, the return was set aside. § 517. Where the jplace 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 no- tice to electors where they might be heard, and where the election was not held at the place designated, but " some- where 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 held inad- missible in evidence.' 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 1 Washburn v. Voorhees, 2 Bart., 54* 2 2 Bart., 822. » Dodge V. Brooks, 3 Bart, 78. 378 ELECTIONS. [chap. XIT. the details are too numerous and complicated to be inserted here with profit. § 518. 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 elec- tion 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 im- portant to keep this distinction in mind. § 519. A statute of Alabama empowered a " board of supervisors of elections " to hear proof upon charges of fraud, etc., and upon sufficient evidence to reject illegal and fraudulent votes cast, " which rejection so made as afore- said," the statute declared, "shall be final, unless appeal be taken within ten days to the probate court." The House of Kepresentatives of the United States, in the case of Norris v. Handley^ 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 Eepresentatives 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 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 canvass- ers rejecting the vote of Girard precinct cannot preclude the House from going behind the returns and considering the effect of the evidence presented." 1 Smith, 6a OHA.P. XIV.] CONTESTED ELECTIONS. 379 § 520. 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 con- fers 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 fraudu- lent. Although this is an extraordinary, not to say a dan- gerous, 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 be- lieved 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 prima facie correct, and to be allowed to stand as valid until shown by evidence to be illegal or unjust." § 521. 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, 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 ab- stracted, so that upon completing the canvass only six hun- 380 ELECTIONS. [chap. XIY. dred and fifty-two ballots for mayor were found. Of this latter number Geo. H. Thaoher 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 Jud- son received two hundred and McCarty one hundred and thirty-four votes. Thacher 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, and was clearly untenable. It ap- pears from the report of this case that the only question made was, as to whether Thacher's vote should be ascer- tained by dediicting 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 Thacher 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, Thacher 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 num- ber substituted being wholly uncertain. Such a return can- not 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.^ § 522. Where an election district is composed of several 1 People ex rd. Judson v. Thacher, 7 Lans. (N. Y.), 274 CHAP. XIV.] CONTESTED ELECTIONS. 381 subdivisions or voting precincts, a failure of the officers of one of such subdivisions to make a return, no matter from what cause, will not invalidate 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 Ms parte Heath and others^ 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 persons were by the greatest number of votes elected, by reason of lawless violence committed upon the inspectors of the first district, etc., and the dispersion of the ballots before they were counted," etc. 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 ac- cordingly it was held that the persons receiving the highest number of votes as shown by the returns from the three dis- tricts were entitled to qualify ; and a mandamus was granted, commanding the mayor to administer the oath of ofllce 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 single subdivision 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 the election aside. It is not enough to say the result is therefore uncertain.* Yet the contrary rule would be much 13 Hill, 43. ^ Ex parte Murphy, 7 Co wen, 153. 382 ELECTIONS. [chap. xiy. 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 happen- ing the result would have been different." ^ § 523. 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 elec- tion 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 oflBcers 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 de- manded of the true state of the vote.' And it is truthfully said in Thompson v. Ewing^ " that the whole conduct of election officers may, though actual fraud be not apparent, amount to such gross and culpable negligence, such a disre- iThe People ex reL, etc., u Vail, 20 Wend., 13. 2 Power to throw out the vote of an entire precinct shoiild be exer- cised only under circumstances which demonstrate beyond reasonable doubt that there has been such disregard of law or such fraud that it is impossible to distinguish what votes were lawful and what were unlaw- ful, or to arrive at any certain result whatever, or where the great body of voters have been prevented from exercising their rights by violence or intimidation. Daily v. Petroflf, 10 Phila., 389; Re School Directors, 12 Id., 605; [People v. Hanna, 78 Mich., 515. In the minority report in Hurd V. Romeis, Mob., 429, the following general rule as stated in Covode V. Foster, 2 Bart, 600, is cited with approval: "It has long been held by all judicial tribunals of the country, as well as by the decisions of Con- gress and the Legislatures of the several States, that an entire poll should always be rejected for any one of the tliree following reasons: 1. Want of authority in the election board. 2. Fraud in conducting the election. 3. Such irregulaxities or misconduct as render the alec> tion void "]. 3 Mann v. Cassiday, 1 Brewst., 60. ♦Id., 107. CHAP. XIV.] CONTESTED ELECTIONS. 883 gard of their oflBcial duties, as to render their doings unin- telligible or unworthy of credence, and their action entirely unreliable for any purpose." ^ § 524. It was said by the Supreme Court of Pennsylvania, in Chadwick v. Melmn^ 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." Un- doubtedly 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 oflBcers. Such fraud or misconduct may destroy the value of the officer's certifi- cate, 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 v. 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 ex- pressed. In Biddle and Richard v. Wing^ 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." * § 525. Although the fact that the officers of an election were not sworn will not of itself, and in the absence of fraud, render the return inadmissible in evidence, yet if fraud be proven, or it appear that such officers have wilfully ^See, also, Weaver u. Given, Id., 140; Batturs v. Megary, lA, 163; Gib- bons V. Stewart, 2 Brewst, 1; [Bisbee v. Finley, 3 Ella., 172J. 2 Bright. Elec. Cas., 551. SCI. & H., 504, 506, 507. * [Le Moyne u Farwell, Smith, 40d.] 384 ELECTIONS. [chap. XIT. disobeyed the law or disregarded their duty, the fact that they were not sworn may become an important fact in de- termining 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 the return 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 return should stand, but not otherwise. This rule has made neces- sary 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. § 526, "Where a proceeding in quo warranto or other form of election contest is based upon an alleged fraudulent alteration of the original returns, it is necessary to produce the original returns with the alleged alteration, or to prove the loss or destruction thereof. Secondary evidence of the contents of the return, or of the alteration thereof, can only be introduced in accordance with the general rule that the party offering it has satisfactorily accounted for the absence of the original and best evidence.^ § 527. The fact that the right to register or to vote has been denied to any person or persons duly qualified to vote may always be shown in a case of contested election, whether such denial was fraudulent or not. The effect upon the rights of electors and upon the result of the election is the same whether such denial be the result of intentional wrong on the part of the ofiicers of the election, or of accident, or an honest mistake as to the law. And if the number of voters whose rights have thus been denied is large enough to materially affect the result, such denial will vitiate the election.' 1 Fletcher v. Jeter, 33 La. Ann., 401; Justices' Opinions, 70 Me., 570. SMcDoweU v. Rutherford Ck)nst Ca, 96 N. a, 514; 3 S. R Rep., 351; CHAr. XIV.] CONTESTED ELECTIONS. 386 [§ 527«. The rule is well established in the House of Kep- resentatives of the United States, that where legal voters have attempted to vote at the proper place, and have been denied the privilege, and it can be proven for whom they offered to vote, their votes should be counted upon a con- test.^ In the case of Frost v. Metcalfe ^ it was said that four things were necessary in order to authorize the counting of votes which have been rejected at the polls: First, the per- son offering to vote must have been a legal voter at the place where he offered to vote ; second, he must have offered to vote; third, it must have been rejected; and fourth, it must be shown for whom he offered to vote.] [§ 5275. The Constitution of Arkansas contains the pro- visioi that "if the officers of any election shall unlawfully refuse or fail to receive, count or return the vote or ballot of any qualified elector, such vote or ballot shall neverthe- less be counted upon the trial of any contest arising out of such election." * The Supreme Court of Alabama has, how- ever, held that where the votes of qualified electors have been rejected by the officers of the election that such votes cannot be counted upon a contest, but that where such votes have not been received the entire election should be set aside.* But it would seem that the rule in such cases should Perry v. Whittaker, 71 N. C, 475; Van Bokkelen v, Canaday, 73 N. C, 198. [It seems that a contrary rule obtains in Wisconsin. It is there held that the person receiving a plurality of the legal votes actually cast at an election honestly conducted is entitled to the office although through an error of judgment the inspectors excluded votes of quali- fied electors sufficient in number to have changed the result. State v. Hanson, 87 Wis., 177; State v. Erickaon, 87 Wis., 180.] 1 [Frost V. Metcalfe, 1 Ells., 289; Sessinghaus u Frost, 2 Ells., 380; Bis- bee V. Finley, 2 Ells., 172; Covode v. Foster, 2 Bart., 600; Taylor v. Read- ing, 2 Bart, 661; Niblack v. Walls, Smith, 101; Buchanan v. Manning, 2 Ells., 287; Bell r. Snyder, Smith, 247.] ''[1 Ells., 289.] 3 [Sec. 11, Art. 4; Govan u Jackson, 32 Ark., 553.] 4 [State V, Judge, 13 Ala., 805. See, also, Webster v. Byrnes, 34 Cal.. 273. In New York the statute governing elections held by religious corporations provides that the inspectors of such an election shall be 25 380 ELECTIONS. [chap. XIV. be the same as that already indicated in cases where legal voters have been denied the privilege of registration,^ and that such votes should be counted where the qualifications and intent of the voters are sufficiently proven.] the judges of the qualifications of the electors. Held, that under this statute the inspectors must decide as to the qualifications of a voter when his vote is offered, and they cannot afterwards allow either party the benefit of votes offered but not received. Hartt v. Harvey, 19 How. Prac, 345.] 1 [§ 136, ante.'l CHAPTEK XV. IMPERFECT BALLOTS. § 528. Incorrect spelling of names and the like. 529. Imperfect ballot may be explained by parol proof. 530. The true rule upon the subject. 530, 531. Ambiguous ballot — surrounding circumstances shown to explain voter's intent. 530. Illustrations. 530. The rule as stated by Judge Cooley. 632, 533. Ballots containing a greater number of names than there are offices to be filled. 634. Ballots written or printed on several pieces of paper. 535, 536. Ballots marked in violation of statute. 537. Statutes forbidding distinguishing marks, when mandatory, 538. Effect of statute regulating size and form of ballot* 539. What is a " distinguishing mark " upon a ballot. 539a. Construction of statute of North Carolina. 539&. Construction of statute of Alabama. 540. Construction of statute requiring indorsement upon ballot of name of office voted for. 641. Ballot may be bad in part and good as to remainder. 543. Repetition of name of candidate. 542. Distinction between ambiguous and void ballots. 543. Ballot may be explained, but cannot be contradicted. 543. Writing prevails over print. 544 Rule as to admissibility of evidence aliunde to explain ballot. 545. Courts not bound by rules which govern canvassers. 546. Illustrations. 547. The term " written " includes what is printed. 548. Constitutionality of statutes requiring ballots to be numbered. 549. Substantial compliance with statute as to form of ballot suffi- cient. 549a. Missouri decisions upon this subject. § 528. 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 388 ELECTIONS. [chap, XV. 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 v. Braxton^ in the House of Kepresentatives 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 " Elli- ott M. Braxton," 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 : § 529. " 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, excepting the sitting member's infant son, who bears the name of Elliott M. Brax- ton, E. M. Braxton, or Elliott Braxton; and that the sitting member was regularly nominated for Congress by the demo- cratic 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 dis- puted 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 be — " 1. 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 to sacri- 1 [State V. Walsh, 62 Conn., 26.] 2[Smith,19.J CHAP. XV.] IMPERFECT BALLOTS. 389 fioe 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 com- mittee 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 strict rule which has sometimes, though not always, been held to gov- ern 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 contest- ant's counsel, is to the votes cast for Elliott Braxton, two hundred and thirty-five in number. These, it is urged, can- not 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 390 ELECTIONS. [chap. XV. ballot, nor to give it a meaning when it expresses no mean- ing 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 ex- plain such a ballot, is thus laid down in Cooley on Constitu- tional ZimitationSf pa^e 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 conven- tions ; 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 show- ing that an imperfect ballot was meant for a particular candidate, unless the name is so different 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 what- ever, in which case it is not admissible.' " To the same effect are the following decisions: Attorney General v. Ely^ People v. Ferguson^ People v. Gooh^ People V. Pease} Canvassing officers must record the ballots as they are and can receive no extrinsic evidence.* " In People v. 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 the opinion that UWis., 420, 43a 28 Cowen, 103. 814 Barbour, 259. <27N. Y., 45, 64 6 Opinion of Justices, 64 Me., 596k CHAP. XV.] IMPERFECT BALLOTS. 891 they were intended for him; and that to arrive at that inten- tion 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 abbrevia- tion to him, and that no other person was known in the county to whom it would apply. This ruling was followed in People v. Seaman^ and in People v. CooJc? In Attorney General v. Ely^ the court went so far as to hold that ballots cast for "D. M. Carpente," "M. D. Carpenter," "M. T. Car- penter," and " Carpenter " might be counted for Matthew H. Carpenter, upon proof made to the satisfaction of the jury that they were intended for him,' " In an early case in Michigan * it was held that no extrin- sic 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 State, how- ever, in its latest decision on the subject,® through a major- ity of the judges, expresses the opinion that the doctrine laid down in People v. Tisdale is erroneous, and it is ad- hered 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 per- nicious doctrine of the earlier cases. We quote from this dissenting opinion as follows: ^' ' AU 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 1 5 Denio, 409. 2 8N. Y., 67. 3 [Wallace v. McKinley, Mob., 185.] 4 People u Tisdale, 1 Doug., 59, 65. 8 [People V. McNeal, 63 Mich., 294.] « People V. Cicott, 16 Mich., 282. 392 ELECTIONS. [OHAP. XT. affected by it and to the public at large. The first are de- prived of their oflBces, and the second of their choice of pub- lic servants. " ' The chief argument in favor of the rule of People v. Tifidale 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 this is the case with each of the parties before us. "'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 be- cause the courts cannot determine for whom they were in- tended, while not a single person in the county of Wayne has the slightest doubt that they were cast for Edward V. Cicott and Gurdon O. "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 iden- tify 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 re- side 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 diflSculty in these cases, but they count the votes for the persons who have been put CHAP. XV.] IMPEEFECT BALLOTS. 393 forward for the respective offices. And in some cases, where an element of uncertainty is introduced into the ballot un- necessarily, 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 designed.' ^ § 530. " 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 contest- ant 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. JS'o harm can re- sult from admitting such extrinsic evidence so long as it is only admitted to cure or explain such imperfections and am- biguities as could be cured if they occurred in the most solemn written instruments, and to this extent, and no fur- ther, would we carry it. Thus guarded and qualified, the rule is most salutary and most just." * 1 And see State v. Gates, 43 Conn., 533; Talkington v. Turner, 71 111., 234; State v. Griffey, 5 Neb., 161; People v. Kennedy, 37 Mich., 67; Lee V. Rainey, [Smith, 589, and Wimmer v. Eaton, 72 Iowa, 374]. In the case of State V. The Judge, etc., 13 Ala., 805, it was held that ballots for "Pence "could not be counted for "Spence." In Opinion of Justices, 64 Me., 596, it was held that the Governor and Council cannot hear evi- dence to explain the ballot of a voter. This upon the ground that they are merely ministerial officers. It was also held that votes for " W. H. Smith " or "W. Smith" could not be counted for William H. Smith. In so far as this case holds that there is no presumption that " W. H. Smith" and "William H. Smith" are one and the same person, it is not well supported by authority. 2 [Boynton v. Loring, 1 Ells., 346; Wilds v. State Board of Canvassers, 50 Kan,, 144; Brown v. McCullum, 76 Iowa, 479. The ballot is indica- tive of the will of the voter. It is not required that it should be accu- rately or nicely written, or that the name of the candidate voted for should be correctly spelled. It should be read in the light of all the circumstances surrounding the election and the voter, and the object 394: ELECTIONS. [CHAP. XV. § 531. The doctrine of this report will be found fully sus- tained by the decision of the House of Eepresentatives in the case of Chapman v. Ferguson,^ 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 v. Wilshire^- where votes returned for " T. M. Gunter," " T. Eoss 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.^ should be to ascertain and to carry into effect the intention of the voter, if it can be determined with reasonable certainty. The ballot should be liberally construed, and the intendments should be in favor of a reading and construction which will render the ballot effective, rather than some conclusion which will, on a technical ground, render it ineffective. Behrensmeyer v. Kreitz, 135 IIL, 495.J 1 1 Bart., 267. 2 43d Congress [Smith, 233]. ' If a ballot expresses the intention of the voter without a reasonable doubt, it is sufficient, though technically inaccurate. Hawes v. Miller, 56 Iowa, 395 ; [Calvert v. Wbitmore, 45 Kan., 99; Gumm v. Hubbard, 97 Mo., 311. Ballots which, on account of a mistake of the printer, gave the name of the candidate as "Herbert" should be counted for Mr. Herbert, who was the only person of a like name being voted for as a candidate. Strobach u Herbert, 2 Ells., 5. Ballots reading "James H. Rainey " counted for Joseph H. Rainey. Lee v. Rainey, Smith, 589. In a case in Iowa the name of " E. W." was printed upon the ballot as " F. W." During the progress of the election the mistake was discov- ered and it was corrected by writing "E." on the remaining ballots. Those who voted the "F. W." ballots thought they were voting for "E. W." There was no one by the name of "F. W." in the township eligible to the office. Held, that these facts were admissible in evi- dence to show the intention of the voters, and "F. W." ballots should be counted for " E. W." Wimmer v. Eaton, 72 Iowa, 374 The only candidates for treasurer being John B. Kreitz, Charles F. A. Behrens- meyer, and B. A. Dikerman, votes for John M. Kreitz, although that was the name of a brother of John B. Kreitz, who had, at a prior time, held the office of sheriff and some minor office, are properly counted for John B. Kreitz, he being ordinarily known as " John," and his CHAP. XV.] IMPERFECT BALLOTS. 305 § 532. It has been 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 oflBces 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 saj such a ballot is bad as to all other names on it because bad as to the two names indicated for the same of- fice.^ § 533. It is well settled that where a limited number of persons are to be chosen to fill a given office — as, for in- stance, where the law provides for the election by the same constituency of two Representatives in the State Legisla- ture — a ballot containing the names of a greater number brother as " Mat," and the vote being evidently intended for John B. Kreitz. There being others of the name of the candidate Behrens- meyer resident in the county, votes for "Behernsmeyer" are prop- erly counted for him, no others of that name being candidates. Tes- timony is admissible to explain that tickets poorly spelled, as for "Krietz," or "Critz," or even omitting the "z," are intended for the candidate Kreitz, the names being idem sonans. The converse applies to a ticket for " Dehbenmeyer," as intended for a candidate Behrens- meyer, the names not being idem sonans. The partial obliteration, in a ballot, of the printed name of the office by the name of the candidate written in, may be orally explained as unintentional. Kreitz v. Beh- rensmeyer, 125 Bl., 141. A different rule from that laid down in Kreitz V. Behrensmeyer has been adopted in "Wisconsin, where it has been held that where two men in the same town were of the same name, one being " C. Sr.," and the other " C. Jr.," and both were eligible to a certain office for which "C. Sr." was a candidate, parol evidence was inadmissible to prove that ballots bearing the name of " C. Jr." were intended for "C. Sr." This for the reason that such ballots were not ambiguous. State v. Steinborn (Wis.), 66 N. W. Rep., 798.] ^ [Montgomery v. O'Dell, 67 Hun, 169. See, also, Sawin v. Pease (Wyo.), 43 Pac. Rep., 750.] 'Commonwealth v. Ely, 4 Wis., 420; S. C, Bright Elec. Cas., 258; [Fen- ton V. Scott, 17 Oreg., 189]. 396 ELECTIONS. [chap. XV. for that oflBce is void. It was accordingly held in People v. Loomis^ that where the number of constables to be chosen was limited to four, ballots containing the names of five per- sons designated as voted for for that oflRce cannot be can- vassed, but must be rejected. " If," says Nelson, J., " one elector can cast a ballot containing jf?ue names, he may one of eighty and thus vote (if he chooses to insert the names) for both tickets. It would be impossible for the presiding offi- cers to select the four according to the intention of the voter, and four only should be counted."^ § 534. Unless there be a statutory provision requiring all officers to be voted for on a single paper ballot, a vote is not necessarily invalidated by being written or printed on several pieces of paper. Thus, it has been held in Kansas that where several officers are to be voted for, a ballot is not to be rejected because consisting of two pieces of paper, one of which contains votes for township officers and the other for county officers; provided the vote is cast in good faith by a legal voter.' § 535. In many of the States there are statutory provis- ions prohibiting the marking of ballots, or the placing upon the exterior thereof any character or iigure. The purpose of these statutes is, of course, to protect the secrecy of the ballot, and public policy demands their enforcement.* Cases 18 Wend., 306. ' And see State v. Griffey, 5 Neb., 161. 'Wildraan v. Anderson, 17 Kan., 344. < [Fields V. Osborne, 60 Conn., 544; Spurgin v. Thompson, 37 Neb., 89; People V. Board of Supervisors of Duchess County, 135 N. Y., 523; Quinn v. Markoe, 37 Minn., 439. Ballots folded in an unusual and strik- ing manner rejected; also creased and torn ballots. State v. Walsh, 63 Conn., 260. A ballot furnished by the State is not a marked ballot •within the law because of any irregularity in making it up or printing it. People V. Wood, 148 N. Y., 142. When a ballot has a mark or fig- ures on the back by accident or through inadvertence it should be counted. Wallace v. McKinley, Mob., 185. A printer's dash iipon a ticket is not a distinguishing mark. Lynch v. Chalmers, 2 Ells., 338. Held in Texas, that a ballot should not be rejected because the voter has written his name on it, nor because election officers have indorsed CHAP. XV.] IMPERFECT BALLOTS. 397 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 re- jected.^ § 536. 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 distin- guish one from another, ballots upon paper tinged with blue, and which had ruled lines, were legal ballots within the meaning of the act.^ 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 stat- ute 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 direct- ory. And so it was held by the Supreme Court of Pennsyl- vania, under a statute of this character, that ballots having an eagle printed thereon were in violation of the law and should be rejected.' § 537. "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 con- their initials on it. Hanscom v. State (Tex. Civ. Ap.), 31 S. W. Rep., 547.] 1 McKenzie v. Braxton, 43d Congress [Smith, 19; Dennis v. Coughlin (Nev.), 41 Pac. Rep., 768]. 2 People V. Kilduflf, 15 111., 492; [Boyd v. Mills, 53 Kan., 594; State v. Saxon, 30 Fla., 668. It has been held in Oregon that tinted ballot paper purchased from the Secretary of State as provided by law may be used, although it is a surplus purchased for a former election and although its color makes the ballots distinguishable. State v. Wolf, 17 Oreg., 119]. 8 Commonwealth v. Woelper, 28 S. & R, 29; Luzerne Co. Election, 3 Penn. L. J., 155; Clinton Co. Election, Id., 160. 398 ELECTIONS. [chap. XV. struing 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 power- ful.^ In Commonwealth v. Woelper* the Supreme Court of Pennsylvania said : "The engraving (on the ticket) might have several ill effects. In the first place it might be perceived by the in- spectors, 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 in- tended to secure. A man who gave in a ticket without an eagle was set down as anti-German and exposed to the ani- mosity of that party. Another objection is that these sym- i [Zeis V. Passwater, 143 Ind., 375; Baxter v. Ellis, 111 N. C, 124; Tebbe v. Smith, 108 CaL, 101; Pennington v. Hare, 60 Minn., 146; Sego v. Stoddard, 136 Ind., 297, in which will be found a consideration of what are distin- guishing marks under the Indiana statute. Where it was provided by statute that a voter who wished to vote a straight ticket should put a cross at the head of the party ticket which he intended to vote, and certain voters put crosses at the heads of two columns, one marked " Republican " and one " Citizens' " ticket, this was held to be an un- necessary and hence a "distinguishing" mark, although the two tickets were identical. Here the court declared the rule to be that " any mark upon a ballot other than one appropriate and necessary to designate the intention of the voter must be regarded as a ' distinguishing mark.' " Attorney-General v. Glaser, 102 Mich., 396.] « [Houston V, Steele (Ky.), 34 S. W. Rep., 6. But where ballots for judicial officers and those for other officers elected on the same day are required to be put in separate boxes, ballots having the word " Judi- ciary " printed on the back thereof are not void either as destroying the secrecy of the ballot or as being in violation of a statute forbid- ding the printing of any mark or device upon the back of the ballots. State V. Borden, 77 Wis., 60L] * Supra. CHAP. XV.] niPEKFECT BALLOTS. 3f 9 bols of party increase that heat which it is desirable to assuage." § 538. The Supreme Court of California has had occa- sion to consider the force and efifect 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, etc. 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.^ The con- clusion 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 im- proper 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 concluded 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 con- trol ; 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 require- ments 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 re- jected.' § 539. A statute of Indiana provided that all ballots should " be printed on plain white paper without any distin- guishing marks or other embellishment thereon except the names of candidates and the officers to be voted for," and that " inspectors of election shall refuse all ballots offered of any other description." Under this statute it has been re- 1 Kirk V. Rhoads, 46 Cal., 398. 2 [Lindstrom v. Board of Canvassers of Manistee Co., 94 Mich., 467; Peo- ple V. Wood, 148 N. Y., 142; English v. Peelle, Mob., 167; MilhoUand v. Bryant, 39 Ind., 363; State v. Adams, 65 Ind., 893.] » [Lynch v. Chalmers, 2 Ells., 338.] 4:00 ELECTIONS. [chap. XV, peatedly 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 stat- ute.* The law was framed to forbid any marks or charac- ters on the exterior of the ballot to distinguish it, and thus destroy its secrecy.^ [§ 539a. An act of the Legislature of North Carolina' provided that ballots should be " without device," and that any ballot having a device upon it should be void. The 1 [But where tickets were headed with the words " Citizens' ticket," but were really issued by the Republican party, they were held to be illegal tickets, there being in fact no party known as the Citizens' party. Talcott V. Philbrick, 59 Conn., 472. It is held under the statute of Texas that a ticket will not be vitiated because the names of more than one political party are found on the ticket above the names of the candi- dates who belong respectively to such parties. Williams v. State, 69 Tex., 368.J 2 Druliner v. State, 29 Ind., 308; Napier v. Mayhew, 35 Ind., 276. And this ruling was followed by the lower House of the 43d Congress in the case of Neflf v. Shanks. And see Wyman v. Lemon, 51 CaL, 273. A " distinguishing mark " upon a ballot is a marking or embellishing of the ballot which will distinguish it from others and impart knowledge of the person who voted it. A mark made by the voter in scratching names from a printed ballot and substituting others is not a distinguish- ing mark. Wyman v. Lemon, 51 Cal, 273. See Applegate v. Eagan, 74 Mo., 258; Coffey r. Edmonds, 58 CaL, 521; Steele v. Calhoun, 61 Miss., 556; Oglesby v. Sigman, 58 Miss., 503; Opinion of Judges, 70 Me., 566; [Shields v. McGregor, 91 Mo., 534. Under a statute prohibiting the mark- ing of an oflScial ballot by the voter, it has been held in New York that where marks appear on such ballots, the intent with which the marks were made cannot be proven by examining the individual voters; fur- ther, that where it appears that a conspiracy has been entered into to de- fraud, and some ballots containing a specified mark are shown to have been cast in pursuance of such conspiracy, all ballots bearing such marks should be excluded from the count People v. Board of Canvassers, 18 N. Y. Sup., 302. The words "For Judge of Probate Court, Henry H. Stedman," upon a ballot, was held in Connecticut to render the ballot void where no election was being held at the time for a probate judge. Fields u Osborne, 60 Conn., 544.] »rSec. 18, Ch. 275, Laws N. C, 1877.] CHAP. XV.] IMPERFECT BALLOTS. 401 committee on elections in the House of Eepresentatives of the United States, in the case of Yeates v. Martin^ distin- guished the language of this statute from that employed in the statute of Indiana, and held that in ^N'orth Carolina the words " Republican ticket " on the inside of a ballot would render the ballot void.] [§ 5395. Under a statute of Alabama providing that " the ballot must be . . . without any figures, marks, rulings, characters or embellishments thereon," it was held in the case of Lowe v. Wheeler^ that the use of the words " 1st District," " 2d District," etc., upon the ballots designating the election district is not a violation of the law and such ballots should be counted.] § 540. There are also in some of the States laws requir- ing that the voter shall indorse on the outside of his ballot the name of the office voted for. These statutes are gener- ally held to be directory only. Thus, in People v. McManus ' it was held that a ballot indorsed " for trustees of puhlio schools" instead of common schools was sufficient. The in- tention of the voter must control, and therefore if that intention is clearly manifested it is enough.* 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.* 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,* but is good as to the other offices named on it. 1 [1 Ella, 384.] 2 [2 Ells., 61.] 3 34 Barb., 620. < People V. Matteson, 17 111., 167. » State V. Goldthwait, 16 Wis., 146. And see State v. El wood, 12 Wis., 5r)3. ^Inre Contested Election School Directors, 6 Phila., 437; Blockley Election, 3 Pars., 534; State r.Tierney, 23 Wia, 430; [State r. Foxworthy, 29 Neb., 341]. 26 403 ELECTI0X8. [CHAI'. XV. § 541. But where a ballot contains the name of the per- son 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.* 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 Kepresentatives 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 chooses to do so. § 542. 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 ex- presses 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, niust be rejected.' Such a ballot may be void, but it is not ambiguous, and therefore cannot be helped by parol proof.* § 543. It very often happens that a printed ticket is changed by the voter by erasing some part of it, or by writ- ing 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 1 People V. Holden, 28 Cal., 124; Ashfield's Case, Cush. Elec. Cas., 58a 2[Wigginton v. Pacheco, 1 Ells., 5; Apple v. Bancroft, 158111,649; State V. Steinborn (Wis.), 66 N. W. Rep., 798. But it is held in Arkansas that a voter may be permitted to contradict his ballot when it is shown that the ballot was prepared for him by one judge instead of two, as required by law. Freeman v. Lazarus, 61 Ark., 247.] ' People V. Seaman, 5 Den., 409. * See McKinnon v. People, 110 IlL, 305. [A ballot for school directors, cast at an election held to choose one director for a long term and one for a short term, cannot be counted where it contains the names of two persons without anything to show which term either was intended to fill Page V. Kuykendall, 161 IlL, 319.] CHAP. XV.] IMPERFECT BALLOTS. 403 other written or printed 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 evi- dence 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 in- tention.^ The rule that what is written upon a ballot will prevail over what is printed was followed by the Supreme Court of Minnesota in Newton v. Newell? § 544. 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.^ § 545. In New York, since the decision in People v. Sexton, and People v. Cooh, 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 1 [People V. Pangburn, 14 Misc. Rep., 195; Rutledge v. Crawford, 91 CaL, 526; Wallace v. McKlnley, Mob., 185; Brown v. McCoUum, 76 Iowa, 479. But where the statute of a State provides that, if more persons are designated for an oflSce than there are candidates to be elected, such part of the ticket shall not be counted, the statute will govern; and if the voter fails to erase the printed name of a candidate and writes under it the name of another person for the same oflSce, the bal- lot cannot be counted for either. Blankenship v. Israel, 182 111., 514] 2 26 Minn., 529. 3 The People v. Saxton, 33 N. Y., 8 Smith, 309. 404 ELECTIONS. [chap. XV. 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 on the face of a ballot, or any apparent incongruity between it and the surrounding circumstances. 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 ap- parent ambiguity on the face of the ballot, it is error for the court to reject proper evidence offered to explain the am- biguity, and to instruct the jury, as matter of law, that such ballot cannot be counted.^ § 546. "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 cor- rectness of the decision of the inspectors will be presumed.' § 647. Where the Constitution declares that aU ballots shall be " fairly written," a jprinted ballot is good.* The term " written " is held to include what is printed, following the definition of that term as given by the best lexicog- 1 [Frederick t?. Wilson, Mob., 401; De Walt v. Bentley, 146 Pa. St.» 629.J 2 The People v. Love, 63 Barb., 535. » Adams v. Wilson, CL & H., 373. < Temple v. Mead, 4 Vt, 535, 541; Henshaw v, Foster, 9 Pick., 312. CHAP. XV.] IMPERFECT BALLOTS. 405 raphers, viz. : " to express by means of letters." ^ Ko 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 expres- sion of Scripture. § 548. 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, etc., on receiving the ballot of any voter, to have the same numbered with figures on the outside or back thereof, to correspond with the num- ber 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 v. Stein? The case pre- sented squarely the question whether under a Constitution guaranteeing to every voter the right to vote at all elections by the people, by hallotj 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 un- constitutional 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 in the highest considerations of public policy. 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.' 1 [So, also, a written ballot should not be rejected where the statute requires a printed ballot. State v. Van Camp, 36 Neb., 91. Contra, State V. McElroy, 44 La., 796.] 2 38Ind., 89. 3 Gushing on Leg. Assemblies, § 103; May's Constitutional History of England, Vol. 1, p. 353; People v. Pease, 27 N. Y., 45; Cooley's Const Lim., 604; Temple v. Mead, 4 Vt, 535; Leadbetter v. Hall, 62 Mo.. 422. 406 ELECTIONS. [chap. XV. § 649. 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 appropria- tion." 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.^ [§ 549 Reid V. Julian, 2 Bart., 822. CHAP. XVII.] IMTEACHMENT OF EETUKNS. 423 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.* § 573. But, of course, the parol evidence offered to set aside a return upon the ground of fraud must be such as to estab- lish 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 con- trary 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 some time 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 in- terested 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 or mis- take in the official count.'^ § 574. Fraud in the conduct of an election may be com- mitted 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 de- liberate 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.^ The reason of this rule is that an officer who be- 1 And see, also, Washburn v. Voorhees, 2 Bart., 54 2 Gooding v. Wilson, 42d Congress [Smith, 79]. 9 Ante, §§ 342, 511; Judkins v. Hill, 50 N. H., 140. 424 ELECTIONS. [chap. XVH. trays his trust in one instance is shown to be capable of the infamy of defrauding the electors, and his certificate is, there- fore, 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 sub- stituting others, although the number shown to have been abstracted be not suflBcient to affect the result, yet no confi- dence can be placed in the contents of a ballot-box which has been in his custody.^ We repeat, therefore, the opinion expressed in the 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 of the question whether the fraud discovered is of itself suf- ficient 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.* § 575. Fraud in the conduct of an election may be shown by circumstantial evidence. It is sometimes a difficult mat- ter to decide whether misconduct on the part of election officers is to be regarded as constituting fraud or as only the result of carelessness, ignorance or negligence. If, how- ever, such misconduct has the effect to destroy the integrity of the returns, and avoid the prima facie 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 pur- pose, 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 v. Foster^ a return was rejected upon proof that a hat and a cigar box were used instead of the regular ballot-boxes ; that they were placed in or near the window through which the votes were received ; that persons other than members of the board were permitted in the room 1 [Hurd V. Romeis, Mob., 429.] 2 [Lloyd V. Sullivan, 9 Mont, 557.] » 2 Bart., 600. CHAP. XVII.] IMPEACHMENT OF KETUKNS. 426 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 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. But misconduct which does not amount to fraud, and by which no one is in- jured, does not vitiate the poll.^ § 576. 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 Judhins v. Hill^ it ap- peared 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 re- sult 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 claim- ing anything under the election conducted by them to the proof of his votes by evidence other than the return.' 1 Dobyns v. Weadon, 50 Ind., 298. 2 50N. H., 140. 3 And see Knox Co. v. Davis, 63 III., 405; Russell u State, 11 Kan., 308. 426 ELECTIONS. [chap. XVH. § 5Y7. It was, however, decided in the case of Judkins V. Hillj sujpra, that no inference of fraud can fairly be drawn 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 per- sons 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 presump- tion 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 return falls to the ground. § 578. It is not necessary, in order to set aside a return for fraud, that it be shown that the officers of elections par- ticipated 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 por- tion 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 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.^ § 579. It would be difficult, if not impossible, to specify in detail the various acts of election officers which will con- 1 People V. Cook, 8 N. Y., 67, 86; People ex rel. Judson v. Thatcher, supra. The rule is, that if a return be impeached for fraud, it is good for nothing as evidence, and all legal votes must be proved by evidence aliunde. See ante, §§ 511, 515, et seq.; % 576. CHAP. XVII.] IMPEACHMENT OF EETURNS. 427 stitute 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 oc- casioning an injury to some one. There must be a fraudu- lent transaction, and a party injured thereby.^ § 580. 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 miscon- duct on their part, be sufficient to invalidate the return ; ^ but the admission of such persons is decidedly improper, espe- cially if the persons admitted be the partisans of any par- ticular candidate or ticket, and the fact of their presence and misconduct may be shown as circumstances tending to invalidate the return.^ § 581. It is not a valid objection to an election that ille- gal 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."^ 1 People V. Cook, 8 N. Y., 67. ^[Atkinson v. Lorbeer, 111 Cal., 419.] 3 Thompson v. Ewing, 1 Brewst., Ill; Covode v. Foster, suprcu * [Hacker v. Conrad, 131 Ind., 444. It is not enough to show that ille- gal votes were received in number greater than the plurality returned for the incumbent; there must also be shown circumstances rendering probable the conclusion that these illegal votes were cast for the in- cumbent. Lehlbock v. Haynes, 54 N. J. Law, 77.J * First Parish, etc., v. Stearns, 21 Pick,, 148; Trustees, etc., v. Gibbs, 3 Cush., 39; [Maynard v. Stillson (Mich.), 66 N. W. Eep. 388J. 428 ELECTIONS. [chap. XVII. § 582. Every circumstance which tends to show 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 pre- cinct, or if the vote cast at the election in question is largely in excess of the vote cast at any previous or subsequent elec- tion, 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 per- sons 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, un- less it can be sifted and purged.^ [§ 582a. "While it is true that mere irregularities in the conduct of an election, where the will of the voter has not been suppressed or changed, will be disregarded, yet a suc- cession of unexplained irregularities, and a disregard of law on the part of the officials, is sufficient to deprive the ballot- box and the returns of the credit to which they are other- wise entitled, and shift the burden upon the party main- taining the legality of the official count.] ^ § 583. In Littlefield v. Oreen^ it appeared that in a pre- cinct 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 ap- peared that a large number of names on the poll list were recorded in alphabetical 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 1 Kjiox v. Blair, 1 Bart., 531. 2 [Langston v. Venable, Row., 435w] •Bright. Elec Cas., 49a CHAP. XVII.] IMPEACHMENT OF EETUENS. 42d 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.^ § 584. 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.' But an election officer cannot go behind the certificate of natu- ralization.' Such an officer may, however, act upon the voter's admission of facts which, if true, avoid his certifi- cate.* 1 And see to the same point, Russell v. State, 11 Kan., 308; State v. Commissioners, 35 Id., 640; [Lloyd v. Sullivan, 9 Mont, 577]. i Ante, % 468. ^ Ante, %% 76, 77. * Ante, %% 287, 2dt CHAPTER XYIII. PROSECUTIONS FOR VIOLATIONS OF ELECTION LAWS. 585. Statutory remedy exclusive. 585, 586. Whether the crime of illegal voting can be punished at common law, query. 585. Decision of the question in Massachusetts. 585. Ruling in Ohio. 587, 588. Conflict of authority as to necessity for showing that de- fendant had knowledge of his disqualification. 589, 590. Liability of person voting upon void certificate of natural- ization. 590-593. Rule where qualification of voter is question of doubt 593, 594 What constitutes the completed act of illegal voting. 595. Liability of minor who votes believing he is of age. 596, 597. No conviction unless election was authorized by law. 598. Construction of statute punishing the offense of voting " with- out being duly qualified." 599, 600. Character of question decided by election oflSoer to be con- sidered. 599. Liability for fraudulently appointing illiterate inspector of elec- tion. 600. Distinction between discretionary and quasi judicial powers of election ofllcers. 601. Mere irregularity in manner of conducting election no defense. 603. Advice of friends cannot be shown in defense. 603. Nor can a favorable decision by officers of election upon defend- ant's right to vote. 603. Requisites of an indictment for illegal voting. 604, 605. Indictment must advise defendant definitely as to nature of charge against him. 606, 607. Not always sufficient to follow words of statute^ 606-614. lUustrationa 606. Case in Tennessee. 608. 613. In general disqualifications must be specified. 609. Not necessary to aver that election was held by the proper officers. 610. Nor what particular officers were to be chosen at the election. 611. Officer not liable for mistake of judgment under statute of Pennsylvania. 613b Indictment for voting more than once at same election. CHAP. XVIII.] PEOSECUTIONS. 431 § 614 Must state where illegal vote was cast. 615. Presumption. 616. Advice of counsel 617. Case in Massachusetts. 618. Burden of proof to show non-residence is upon the Common- wealth. 619. Defendant's statement at time of voting not admissible in evi- dence. § 585. It is not within the purpose of this work to treat of the familiar general rules and principles of criminal prac- tice and evidence, but it is thought that it will be useful to call attention to some of the more important rulings of the courts respecting the application of these rules and princi- ples to cases arising under statutes providing for the punish- ment of persons guilty of violating election laws. In nearly all of the States there are statutes making criminal all at- tempts at fraud or illegal voting, and as a matter of course, where there is such a statute, the remedy prescribed thereby is exclusive of any proceeding under the common law. As to whether the crime of illegal voting or the like can be punished at common law in the absence of any statute upon the subject, the authorities are not altogether harmonious. The better opinion, and the one sustained by the weight of authority, is that there is a criminal common law applicable to such offenses which the courts of the several States may enforce in the absence of appropriate statutory provisions.^ § 586. In Commonwealth v. Bamuel Silsbee^ the indict- ment charged that the defendant, a legal voter, at the town meeting held on the 11th day of March, 1811, at Salem, for the choice of town officers, " did then and there wilfully, etc., 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. 1 [Commonwealth v. McHale, 97 Pa. St., 397.] »9 Mass., 416. 4:32 ELECTIONS. [CHAP. XVm. " 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 oflBcer to be elected. The person who gives more in- fringes and violates the rights of the other voters, and for this offense the common law gives the indictment." In Ohio, however, a different rule prevails.^ And in the Federal courts there is no common-law criminal jurisdiction. § 587. It is a disputed question whether under an indict- ment for illegal voting it is necessary, in order to convict, to show that the defendant had knowledge of his disqualifica- tion. In Commonwealth v. Aglar^ 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 a vote, it is not a wilful act punishable by indictment. The same doctrine prevails in Rhode Island, where the courts hold that, to sustain an indictment for illegal voting, the bal- lot must be fraudulently cast, that is, with knowledge by the voter of his disqualification.^ It has also been held that whether the offense was wilfully committed is a question for the jury.* 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.* And so in North Carolina,' 1 [State V. Philbrick, 84 Me., 562.] 2 Key V. Vattier, 1 Ohio, 132; Van Valkenburg v. The State, 11 Ohio, 404 'Thacher's Criminal Cases, 412; Bright Elec Cas., 695. < State V. Macomber, 7 R L, 349. * Commonwealth v. Wallace, Thach. Cr. Cases, 592. ** McGuire v. State, 7 Humph., 54. 'State V, Hart, 6 Jones (Law), 889; State v. Boyett, 10 Ired., 836, OHAP. XVin.] PKOSECUTIONS. 433 111 California the courts have avoided both extremes, and planted themselves upon a sort of middle ground, by adopt- ing 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 justifi- cation or excuse lies on the defendant.* § 588. The statute of Ehode Island provided for punish- ment of any person who at " any election Bhall Jraiidulently 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 the yaots which constitute the defect in his right. 3 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."* § 589. A person to whom a void certificate of naturaliza- tion has been issued by the clerk of a State Court without any action by the court and without the appearance of such person in court has of course no legal right to vote as a naturalized citizen. It has, however, been held that the act of voting upon such a certificate by one who is only shown to have known that it was issued by the clerk and not by the court, is not a crime that can be punished, for the reason that the voter may have acted in good faith, believing the certificate to be valid.* § 590. Substantially the same doctrine was laid down in 1 People V. Harris, 29 Cal., 678. 2 State V. Macomber, 7 R. I., 349. [See, also, State v. McClarnon, 15 R. L, 462.] » And see, also. State v. McDonald, 4 Harrington, 555; State v. Porter, Id., 556. « United States v. Burley, 14 Blatchf., 91. 28 ^34 ELECTIONS. [chap. xvin. State V. Smith, et alA This was an indictment charging defendants, as selectmen, with erasing from the list of voters of the town of Boscamen, the name of Timothy Kellej, alleged to have been a legal voter of that town. It was, under the statute, the duty of the selectmen to hear all 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, * * * know- ingly erase from or omit to insert the name of any legal voter, he shall be punished," etc. It was held that the select- man could not be punished for an erroneous decision merely, but only for corruption. § 591. And it was observed by the Court, that notwith- Btandiug 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 accus- tomed 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." § 592. And in Wisconsin the same doctrine was very clearly and forcibly stated in Byrne et al v. The State. ' 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 discre- tionary power conferred by law. That maxim applies to acts which are voluntary, and will estop such officers from » 18 N. H., 91. * 12 Wis., 519. CHAP. XVni.] PROSECUTIONS. 435 setting up their ignorance of the penalties inflicted by a statute, as an excuse for their willful 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 hona fide effort to discharge kis duties according to the best of his knowledge and ability. § 593. A statute which provides for the punishment of any one who shall "wrongfully put or insert" ballots in the box, was construed to apply to a case where the defendant handed a fraudulent ballot to a judge of the election, with the intent to induce him to deposit it in the box. Such a statute will be so construed as to attain the evident object of the legislature.* § 594. The question when the act of voting is to be con- sidered as complete, is also a disputed question. Thus, in Alabama it was held that it is not complete until the ballot is put into the box, and the name^of the voter registered by the clerks, and that a defendant can not, therefore, be con- victed of illegal voting, if the act is not thus consummated.* 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 com- plete, without the actual placing of the ballot in the box.' § 595. A minor who is otherwise duly qualified can not be convicted of illegal voting if he voted under the honest belief induced by information from parents, relatives or acquaintances having knowledge of the time of his birth, ' Commonwealth v. Gale, 10 Bush., (Ky.,) 488. « Blackwell v. Thompson, 2 Stew. «& Port. 348. ' Steinwehr v. State, 5 Sneed, 586. A statute proriding for the pHnish- ment of election frauds should be so construed, if possible, as to attain the object of the legislation therein. Thus in Kentucky a statute pro- viding for the punishment of any person who should " wrongfully put or insert " ballots in the boxes, etc., was held to prohibit the delivery of a fraudulent ballot to a judge of election, or procuring another to practice the fraud, whether with or without a corrupt motive on the part of the one inserting the ballot. Commonwealth v. Gale, 10 Bush., 488. 436 ELECTIONS. [chap. XVIIL. that he had attained his majority. * But it is clearly the duty of every person who exercises the right to vote to use due diligence in ascertaining the facts as to his qualifications, and he can not shut his eyes to facts which, by the exercise of such diligence, he might ascertain. The general rule that ignorance of the law excuses no man, applies with all its force to cases of the violation of election laws; but ignorance of facts, if it be not willful ignorance, may excuse. The true doctrine is, unless otherwise provided by statute, that if the voter is aware of a state of facts which disqualify him under the law, and is ignorant of the law, he may be con- victed of the crime of illegal voting. If, however, he is honestly mistaken about a question of fact, as for example, if he honestly believes himself to be twenty-one years of age when he is not, he may be excused. If he knows he is only twenty years old, but is ignorant of the law, which requires him to be twenty-one years of age, he can not be excused. And so a person accused of illegal voting may show that he was honestly mistaken about any fact, and that he acted conscien- tioQsly, but he can not show that he did not know the law. S 596. 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, can not be sustained unless such meeting was warned and notified in the manner (prescribed by the statute. * But this ruling, to be sustained, anust be based upon the fact, that under the statute of that jState 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 elec- ttion at which the illegal vote was cast was a lawful and valid election. An informality or irregularity which does not go tto the validity of the election itself, can not be pleaded as a kiefense to such an indictment. § 597. It has accordingly been held in Texas that it is a » Gordon v. State, 52 Ala., 208. > State V. Williams, 25 Maine, 661. CHAP. XYIII.] PKOSEOUTIONS. 437 good defense to an indictment for illegal voting to show that the election was not legal and valid, since the oflFense covered by the statute in such cases is that of voting illegally at a lawful election. And it has been held in Texas that when a party was indicted and imprisoned on a charge of this char- acter, the question of the constitutionality of the statute under which the election was held can be inquired into in a case of habeas corjpua brought by the prisoner. ^ This defense, however, must go to the lawfulness and validity of the election, and will not be supported by showing mere irregularity in the manner of conducting the election, or with respect to the voter thereof. § 598. Under a statute providing that any person who shall vote " without being duly qualified," shall be punished, etc., 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 town- ship, and it was held that he was liable to indictment, both for perjury and for illegal voting.* § 599. In considering whether an officer of election has acted willfully and corruptly in rejecting a vote whi<;h is offered, it is proper to look at the character of the question he was called upon to decide, and the manner in which h% 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 likdy to (ftgree, and if it be decided without deliberation, and against (the right, a strong presumption of willfulness and coiruption will arise. But if it be a question of doubt or difficulty, one about which men of ordinary intelligence might honesti|r differ, and if the judge acts with deliberation, and with Mk » Ex parte Rodrigues, 39 Tex., 705. * The St&te v. Mianick, 15 Iowa, 123. 4C3 ELECTIONS. [chap. XVIlI. apparent desire to decide rightly, and errs in his judgment, it is fair to presume that it is a case of honest error.^ § 600. In Mar3'^land it is held that where the law devolves discretionary and quasi judicial powers upon election officers they can be punished only for abuse of discretion, or for acts done wilfully, fraudulently or corruptly .^ But it is also held in that State that where the statute imposes upon such ofiicers purely ministerial or clerical duties and gives them no dis- cretion as to their performance, and where a penalty is pre- scribed for a failure or refusal to perform such duties, it is not necessary to allege or prove a corrupt purpose.^ This distinction is founded upon perfectly sound principles, and it is important, because in most of the States there are stat- utes imposing purely ministerial duties upon such officers and providing penalties to insure their prompt and faithful performance. It has been held that where commissioners of election were indicted under United States Revised Stat- utes, Sections 5515 and 5522 [now repealed],* for making un- lawful additions to the voting list, it was necessary, in order to convict, to show a fraudulent intent.* § 601. Mere irregularities in the manner of holding or conducting an election constitute no defense to an indict- ment for illegal voting. If there was an election held in pursuance of law, at the proper time and place, it is suffl- 1 Id. The appointment as inspector of elections of a person who could neither read nor write, naade with intent to affect the election or the result thereof, was an indictable offense under Section 5515 of the Re- vised Statutes of the United States, and the indictment did not need to contain the word "fraudulent," the act charged being in its nature fraudulent. It is impossible for a person who can neither read nor write to properly perform the duties of such an office. United States V. Carruthers, 15 Fed. Rep., 309. A mere mistake is not punishable; but where an illegal act is done by officers of election with the intent to change or affect the result of the election, the act is a fraud. Id. 2 Bevard v. Hoffman, 18 Md., 479; Friend v. Hamill, 34 Md., 298; State V. Bixler, 62 Id., 357; [United States v. Chamberlin, 32 Fed. Rep., 777]. 3 McCullough V. Helwig, 7 AtL Rep., 454. * [Act of Feb. 8, 1894.] 5 United States v. Wright, 16 Fed. Rep., 112. See also People «. Boas, 29 Hun (N. Y.), 377. CHAP. XYIII.] PEOSECUTIONS. 439 cient.^ But if the election is an illegal one, the indictment cannot be maintained.^ § 602. On the trial of an indictment under a statute for " wilfully voting when not a citizen of the United States," evidence that the defendant consulted " friends " as to his right to vote, " and was advised by them that such right ex- isted," was held inadmissible. 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 con- sulted 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 evidence would not be conclusive.' A favorable decision by oflBcers of election upon the right of an individual to vote is no defense to an indictment for ille- gal voting.* § 603. It is not within the scope of this volume to go into a detailed consideration of the rules of pleading appli- cable to prosecutions for fraudulent and illegal voting. It is sufficient to say that in general the principles and rules of criminal pleading govern here. The indictment should con- tain a specific averment of the facts which constitute the offense charged.' 1 State V. Cahoon, 12 Ired., 178. 2 State V. Williams, 25 Me., 561. 8 State V. Shelley, 15 la., 404: Gordon v. State, 52 Ala., 208. And see § 595. [It is no defense to a prosecution of one accused of voting after having been disfranchised by a conviction of larceny, that he had for- gotten the fact, nor that he had been advised by friends or legal counsel that there was no record of his conviction on the court dockets. Gandj' V. State, 82 Ala., 61.] < Morris v. State, 7 Blackf., 607. [But a different rule has been adopted in North Carolina. It is said by the Supreme Court of that State that "the decision of the judges of election that a person is entitled to vote is a complete defense to an indictment for illegal voting, although such person may not be in fact entitled to vote." State v. Pearson, 97 N. C, 434.] 5 As to requisites of an indictment for unlawful voting, see United States V. Hendric, 2 Sawy., 479; United States v. O'Neill, Id., 481 ; Unted 440 ELECTIONS. [chap. XVIIT. § 604. 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, etc., it is sufficient if the indictment fol- low the language of the statute, and it need not state in what the disqualification consisted.^ 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 de- fendant 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. § 605. A statute of JS'ew Jersey provided for the punish- ment of " any person who shall vote or fraudulently offer to vote," knowing that he is not duly qualified, etc. 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 wsiS fraudulently given, but in'charging such defendant with offering to vote illegally, it must be charged that he fraudu- lently offered to vote, knowing that he was not duly quali- fied, etc. It was also held in the same case that an indict- ment which failed to specify the particular disability which is relied on as a disqualification of the defendant as a voter is fatally defective.^ § 606. And in Tennessee it is held that an indictment charging the defendant with having " unlawfully and know- ingly voted, not being a qualified voter," is bad, though in States V. Johnson, Id., 482; [State v. Miller, 182 Mo., 297; 33 S. W. Rep., 1149; United States v. Brown, 58 Fed. Rep., 558; Blitz v. United States, 153 U. S., 308; United States v. Jaques, 55 Fed. Rep., 58. The same rule applies to indictments of election oflacers for fraud. State v. Krueger (Mo.), 35 S. W. Rep., 604; Commonwealth v. Maddox (Ky.X 83 a W. Rep., 189.] 1 State V. Douglass, 7 Iowa, 413. 2 State V. Moore, 3 Dutch., 105. And see, also, State v. Tweed, 8 Dutch., Ill; United States v. Cruikshank, 93 U. S., 55a CHAP. XVIII.] PEOSECUnONS. Ml the words of the statute. There are various disqualifica- tions, and the indictment must show which one is wanting.* 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 alike ; ' 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 pre- pare his defense. And this reasoning seems entirely sound. § 607. Nor is it always suflBcient to charge an offense in the words of a statute. "Whether this is 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," etc., it was held that an indictment charging that these officers " did commit wilful fraud in the discharge of their duties," without stat- ing the particular acts constituting the fraud, was fatally defective.* It was further held in the same case, that the inspectors, judges and clerks cannot be joined in one in- dictment as defendants, their offices being distinct and their duties distinct and separate. And in Commonwealth v. 1 Pearce v. State, 1 Sneed, 63. These cases are in conflict with State V. Douglass, supra, and the doctrine of the latter case is sustained by the case of United States v. Quin, 13 Int. Rev. Rea, 151, and United States V. BuUard, 13 Id., 195. 2 [In People v. Barber, 48 Hun, 198, an indictment charging the de- fendant, a woman, with illegally voting, when disqualified on account of her sex, was held good.] ' [Under a prosecution for altering a tally-sheet it is not necessary to set out a copy of the poll-book or tally-sheet; it is sufficient to describe it by the description "poll-book" or "tally-sheet," and allege the fraud- ulent alteration. State v. Granville, 45 Ohio St., 264] ^Commonwealths. Miller, 2 Parsons, 480; Bright. Elea Cas., 711. And see United States v. Cruikshank, 92 U. S., 543. 442 ELECTIONS. [chap. XVIIL Qray^ a similar ruling will be found. In that case the in- dictment was against one of the judges, and charged him with knowingly and unlawfully receiving the vote of an unquali- fied 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 v. Ayer? § 608. And it has been held in Indiana that an. indict- ment 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.' Under such an indictment, if held good, the State might prove the want of any one of the many qualifications required to be pos- sessed 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.* § 609. If an indictment against a party for voting ille- gally charges that the election was held on the day fixed by law, states 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 aver- ment 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 1 2 Duvall, 873. 2Cush. Elec. Cas., 674 8 Quinn v. The State, 35 Ind., 485. * And see Gordon v. State, 52 Ala., 308. CJompare State r. Welch, 31 Minn., 22, and State v. Bruce, 5 Oreg., 64 CHAP. XVIII.] PKOSECDTIONS. 443 opened and the election conducted by the properly consti- tuted oflBcers.i § 610. In the same case it was held that it is not neces- sary in an indictment to state what oflBcers 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 defend- ant voted, the presumption that he voted for some person necessarily arises. § 611. In an indictment under the statute of Pennsyl- vania, 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 disre- gard 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 ap- pears.2 § 612. An indictment charging the defendant with hav- ing voted more than one time at a general election, held on a given day in a particular county, is not demurrable be- cause it fails to allege the names of the persons or officers for whom the defendant voted.^ § 613. A person charged with a public offense is entitled, before he can be required to answer, to demand a specific averment of the facts which constitute the offense charged. It is therefore not sufficient to charge in general, in an in- dictment, that the officers of an election did commit wilful fraud in the 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 1 The State v. Douglass, 7 Iowa, 413. 'Commonwealth u Lee, 1 Brewst., 273; Cushing's Elec. Cas., 98. •Wilson V. State, 43 Ala., 299. 444 ELECTIONS. [chap. iVlU. of the statute, unless those words serve to allege the fact with all the necessary additions, and without any uncer- tainty or ambiguity.* § 614. Inasmuch as illegal voting is a local offense, it is necessary that an indictment therefor should state with pre- cision where the illegal vote was cast.* § 615. The same presumptions obtain as in other crim- inal cases. The maxim ignorantia legis neminem excusat applies.' Where the defendant is proved to have committed an unlawful act, the law presumes it to have been intended, and the burden is upon him to show justification or excuse.* § 616. 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 admissi- ble 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.* And a person indicted for voting while yet a minor may show in defense that he voted under an honest belief, in- duced by information derived from parents, relatives or ac- quaintances having knowledge of the date of his birth, that he had attained the requisite age.' § 617. 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, ad- mits on his trial that he voted at the election, it is equivalent to an admission that he voted wilfully.' But this could 1 3 Parson's Select Caa, 480. [An indictment woiJd not lie against one attempting to vote a second time, under Section 5511, United States Revised Statutes, for preventing and punishing corruption at Congres- sional elections. United States v. Trainor, 36 Fed. Rep., 176.] estate V. Fitzpa trick, 4 R L, 269; Commonwealth v. Shaw, 7 Mete, 58. •McGuire v. State, 7 Humph., 54; State tt Hart, 6 Jones (N. G.), 889; State V. Boyett, 10 Ired. (N. C), 336. * People V. Harris, 29 CaL, 678. » Commonwealth v. Bradford, 9 Mete., 2681 •Gordon v. State, 53 Ala., 308. ' Commonwealth v. Bradford, 9 Mete., 268L CHAP. XVrn.] PK0SECUTI0N8. 445 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 meaning only " design- edly, purposely, with an intent to claim and exerdse the right of suffrage." § 618. On the trial of a party indicted for wilfully giv- ing in a vote at an election, knowing himself not to be a qualified voter, when the only question is whether he had re- sided 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 resi- dence, but the burden of proof to support the indictment remains on the Commonwealth.^ § 619. It is held in Indiana that on 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.^ lid. 2 Morris v. State, 7 Blaokf., 607. CHAPTER XIX LEGISLATIVE BODIES— THEIR ORGANIZATION AND JUDI- CIAL POWERS. § 620. Importance of established rules governing organization. 621. Members holding usual credentials entitled to participate in or- ganization. 623. Temporary organization. 623. Statutory regulations. 624 No general business until members have been sworn. 625. Power of Houses of Congress over election, returns and qtialifi- cations of their members. 626. Powers and duties of clerk of lower House of CongresSt 627. Division of legislative body which ought to be a unit. 638, 629. Rule for determining which is the legal organization. 638. Distinction between supreme and subordinate legislative bodies. 638. Power of courts over the latter. 638. Important case in Pennsylvania. 639. Question between rival bodies each claiming to be Legislature. 629-631. Decision of United States Senate. 633. Power of legislative body to preserve order and deoorum. 633. Duty of presiding officer. 634. Power of Houses of Congress over their members. 634, 635. Expulsion. 635, 636. Jurisdiction to inquire into acts done before eleoti See Globe, Third Session, 42d Congress, pp. 1880 to 1835. • Cooley on Const Lim., 133 ; Anderson v. Dunn, 6 Wheat, 204 ; Stock- dale e. Hansard, 9 Ad. & El., 231; Burnham v. Morrisey, 14 Gray, 226; State «. Mathews, 37 N. H., 450; Case of Irwin, 43d Congress; Case of Walcott, 35th Congress. CHAP. XIX.] LEGISLATIVE BODIES. 465 refusing to answer questions put to him, is not a general power, but one which exists only in cases where the jurisdic- tion of the House is made to appear. § 638. An examination of the authorities upon the sub- ject, will show that not alone the two Houses of Congress, but our legislative bodies generally, possess the power to protect themselves by punishment for contempt, and by ex- pulsion of a member. This is a power inherent in every legislative body. The power to punish contempts of its au- thority which belongs to legislative bodies in general, is not limited to the punishment of members, but reaches other persons who are shown to be within the jurisdiction of the House, and it belongs to each House of our State legisla- tures, whether expressly conferred by constitutional pro- vision 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 termi- nate with the final adjournment of the House, and if the prisoner be not then discharged by its order, he may be re- leased on habeas corpus. * § 639. An act of Congress of 24:th January, 1857, pro- vides for the punishment by fine and imprisonment, of any person who having been summoned as a witness by the authority of either House of Congress, shall willfully make default, or who having appeared shall refuse to answer any question pertinent to the question under inquiry. The said act further provides m 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 re- ported 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."* * Jefferson's Man., Sec. 18 ; Cooley on Const. Lim., 184. > Rev. St. U. S., p. 17. 30 ^6 ELECTIONS. [chap. XIX. Under this statute it has been claimed that the Houses of Congress are deprived of the power to punish for contempt, and that they have authority only to report a case of con- tempt to the proper district attorney to be laid before the grand jury. But this is an erroneous view of the effect of the statute. 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 U punish ceases with its final adjournment, and the punish- ment which it may inflict is 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, de- cided by Judge McArthur, January, 1875. The House of Representatives having committed Irwin to the common jail of the District of Columbia for contempt, in refusing to an- swer proper questions put to him in the course of an investi- gation, 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 inasmuch as Congress has created the act of a witness refusing to answer a misdemeanor, they have abolished it as a contempt. I can not so regard it. It ap- pears 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 CHAP. XIX.] LEGISLATIVE BODIES. 46T of the statute; and I believe this is the first time that that aspect of the case has ever been presented for judicial exami- nation. There is nothing clearer than that the same act may be both a misdemeanor 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 mis- demeanor under the law, for which he could be punished. It would be no answer to the proceedings in the House for con- tempt to say that he was liable under the general law of the land, to be punished for the misdemeanor." §640. The power of legislative bodies to punish their, own members, as well as others, for contempt, is not a general unlimited power, but one which can be exercised only to the extent that it is conferred either by express constitutional or statutory provision, or by necessary implication therefrom. Thus in the case of Kilhourne v. Thompson,^ it was held that although the House of Representatives of the United States can punish its own members for disorderly conduct or for failure to attend its sessions, and can decide cases of con- tested elections and determine the qualifications of its mem- bers, and exercise the sole power of impeachment of officers of the government and may, where the examination of witnesses is necessary to the performance of these duties fine or imprison a contumacious witness, there is not found in the Constitution of the United States any general power vested in either house to punish for contempt. It was therefore held in that case that the imprisonment of Kilbourne for refusing to divulge his private affairs before a committee of investigation of the house was unlawful, because the partic- ular matter about which the witness was examined was not a matter to which the authority of the house extended. The elaborate and exhaustive opinion by Mr. Justice Miller in this case discusses fully the whole subject, and may be referred to as settling finally the question of the powers of » 103 U. S., 168. 468 ELECTIONS. [OHAP. XIX. the Houses of Congress in the matter of punishing persons charged with contempt. Anderson v. Dunn, supra, is com- mented upon and some of its reasoning overruled and re- jected.^ 1 [The Legislature of the State of New York does not possess the com- mon-law power to punish for contempt which is exercised by the Brit- ish Parliament. It has only such powers in that respect as are expressly conferred upon it People v. Webb (Sup. Ct. N. Y., 1889), 5 N. Y. Sup., 855.] CHAPTER XX CORPORATE ELECTIONa 641. Corporations governed by stockholders. 642. Each shareholder entitled to one vote for each of his shares of stock unless otherwise provided. 643. Qualifications for voting in a corporation. 643. Interest of stockholder in general no disqualification. 643. Limitation of this rule. 644. Rights of stockholders. 645. Equitable assignment of stock. 645. Right to vote not limited to natural persons. 646. Qualification of rule that legal holder of shares may vote upon them. 647, 648. Corporate transfer book as evidence of title. 649. Rights and duties of persons holding stock as trusteetk 650. Contract of membership, when complete. 651. Mode of conducting stockholders' meetings. 653. Notice. 653. How given. 653, 654 May be by statute, charter, by-laws or standing nileB^ as well as by publication. 654, 655. Mandamus to compel calling of election. 656. Election must be held at reasonable time and place. 657. Adjournment. 658. 659. Validity of corporate meeting held beyond borders of State creating the corporation. 660. Voting by proxy unknown at common law. 660. But now generally recognized. 661, 662. Conduct of corporate election. 663. Illegal voting. 664. Cumulative voting. 664, 667. Cannot be forced upon corporations after their organization. 665. Election of directors. 665, 666. Right to vote for less than whole number, 668. Votes for disqualified or ineligible candidate. 669. Failure to elect officers at proper time. 670. Tenure of officers of corporation. 670. Holding over. 671. Remedies for illegal corporate elections: 470 ELECTIONS. [chap. XX. § 641. Strictly speaking a corporation consists of the whole number of its stockholders; but in point of fact the business of such bodies is carried on by officers or agents chosen or elected by the stockholders. In the exercise of the power of electing officers, the majority rules. Whoever takes shares in a corporation is understood as consenting to be bound by the action of the majority proceeding within the scope of the powers conferred by the charter or organic law of the corporation. * § 642. At common law it seems each shareholder was entitled to but one vote irrespective of the number of shares held by him.' But by long continued custom and usage, it has been established as a principle of corporation law that each shareholder is entitled to one vote for each of his shares of stock and this is presumed to be the law governing every corporation unless a contrary intention is expressed by the charter, or some general provision of law. It is very gener- ally provided by statute, or by express provision of charter or articles of association that such shall be the rule. ' § 643. The qualifications for voting required of a stock- holder are that he shall be a bona fide holder of stock, and shall have complied with all requirements of the statute or Constitution of the particular State and of the charter of the company prescribing terms or conditions upon which the right of stockholders to vote is to be exercised. Stockholders are not disqualified from voting by reason of personal interest. If this were a disqualification, they could not vote at all, as all stockholders are necessarily personally interested in all the business transactions of the corporation of which they are members. The rule which forbids an officer or agent to represent the corporation in a transaction where his interests are hostile » Morawetz on Private Corp., 2nd Ed., Sees. 474, 475, 641, 647; Dudley «. Ky. High School, 9 Bush., 578. 2 Taylor t. Griswold, 14 N. J. Law, 222, 287. * Morawetz on Private Corp., Sec. 476. CHAP. XX.] COEPOEATE ELECTIONS. 471 to those of the corporation, has nf^vor been applied to deter- mine the qualifications of stockholders to vote at a corporate election. The courts will not enter into an investigation as to the interests of the numerous stockholders voting at a general corporate meeting.* This doctrine, however, has its limitations; and it is safe to say that the majority of the stockholders can not fraudu- lently conspire together to defraud the corporation of its property or rights, nor to injure the minority, for their own personal advantage. And if, in attempting to carry out a scheme of this sort, and as a part of the conspiracy, the ma- jority of the stockholders should elect a board of directors composed of their tools and pledged to carry out the con- spiracy, it is not doubted that the courts would interfere at the suit of a stockholder and afford relief. The majority must exercise diligence and fidelity in administering the company's affairs.* § 644. Each shareholder in a corporation is entitled as a matter of absolute right to be present and vote at any meet- ing of shareholders held for the purpose of electing officers or deciding any other question by the action of the share- holders as a body. 8 He is also entitled to obtain from the agents of the company the proper evidence of his right to vote, as for example, a certificate showing the number of shares to which he is entitled, the extent to which they have been paid up and the like. A shareholder who has pur- chased his stock in the market in good faith is entitled to have the transfer thereof entered upon the books in accord- ance with law. For the enforcement of these rights such shareholder may proceed by mandamus or by bill in equity for specific relief; or he may sue for and recover damages.* § 645. As already stated, the right to vote belongs to the 1 Morawetz on Priv. Corp., Sec. 477. 2 Meeker v. Winthrop Iron Co., 17 Fed. Rep., 49; Morawetz on Priv. Corp., Sees. 478, 520, and cases cited. ' [A by-law authorizing holders of railroad bonds to vote at stock- holders' meetings is void. Durkee v. People, 155 111., 354.] * Mor. Priv. Corp., Sees. 212 et seq., 453, 236, and cases cited in notes. 472 lELECnON8. [chap. XX. shareholders; that is to say, to the persons who hold the legal title to the shares of stock outstanding. A mere equitable assignment of shares does not deprive the holder thereof of his right to vote thereon. So it has been held that a pledgor or mortgagor of shares is still entitled to vote as the legal holder thereof. * The right to vote at a shareholders' meet- ing is not limited to natural persons. A corporation or other collective body holding shares may vote upon them through a duly authorized agent. § 646. While the general rule is that the right to vote belongs to the legal holder of shares, yet this rule is not without its limitations. If the shareholder has sold all his interest in his shares, he has no right to vote upon such shares without the consent of his vendee, although there may be no transfer of the shares upon the company's books.* But the right of the legal holder of shares to vote thereon is com- plete as against the other shareholders, and the latter have no right to inquire into the question of the equitable owner- ship of such shares.* § 647. Where a dispute arises as to who is entitled to vote upon a particular share of stock, reference is generally had to the corporate transfer book. The person there regis- tered as the owner of the stock is entitled to vote upon it. The inspectors can not well inquire beyond the transfer book, especially where the statute provides, as is the case in most of the States, that the stock shall be transferred only upon the books of the company.* § 648. It is not necessary that the owner of stock should produce his certificate, or even have a certificate, in order to 1 McHenry v. Jewett, 26 Me., 453; In re Barker, 6 Wend., 509; Hoppin V. Buffum, 9 R I., 513; Ex parte Willcocks, 7 Cow., 402; Vail v. Hamil- ton, 85 N. Y., 453; Morawetz on Priv. Corp., Sec. 483. [And a pledgor of stock which stands in the name of the pledgee may compel the pledgee by a suit in equity to give him a proxy to vote or to transfer the stock to him for that purpose. Hoppin v. Buffum, 9 R. L, 513; Vowell V. Thompson, 3 Cranch, Cir. Ct. Rep., 428.] 2 McHenry v. Jewett, 26 Me., 453. 3 Re St. Lawrence Steamboat Co., 44 N. J. Law, 529, 539, and cases cited. * In re Lone Island Railroad Co., 19 Wend., 37, 44; Ex parteWillcocka, 7 Cow., 404; State v. Ferris, 42 Conn,, 560, 568. CHAP. XX.] COEPOEATE ELECTIONS. 473 be entitled to vote.* And it has been held that it is not necessary that tlie holder of the stock shall have paid for the same in order to entitle him to vote, if he has purchased it and is indebted for the purchase price. This vests the title to the stock in him, together with the right to vote upon it.* § 649. The general rule is that a person holding stock as a trustee is entitled to vote upon the stock.* It has, however, been decided that where stock is held by a naked trustee without any interest, the cestui que trust may compel the trustee to vote as he shall direct.* An executor or administrator may vote on stock of his testator or in- testate. This upon the ground that the title is vested by law in such executor or administrator; and it has been held that in such case the right to vote can not be denied upon the ground that the stock has not been transferred on the books of the corporation. * It is well settled that a corporation can not vote upon shares of its own stock. § 650. It is sometimes important to determine at what time a person becomes entitled to the right to vote as a stockholder of a corporation, or in other words when the contract of membership becomes complete so as to clothe the stockholder with the privileges as well as to impose upon him the duties of membership. The rule is that the contract is complete when a subscription to the stock of the corpora- tion has been entered into and all conditions precedent have been complied with. Stock subscriptions are often entered > Becket v. Houston, 32 Ind., 393. ' Birmingham, etc.. Railway Co. v. Locke, 1 Q. B., 256; Savage c. Ball, 17 N. J. Eq., 142; Downing v. Potts, 3 Zab., 66. ^ Widow Conant v. Millaudon, 5 La. Ann., 542 ; Wilson v. Proprietors of Central Bridge, 9 R. T., 590; Hoppin v. Buffum, 9 Id., 513; Crease v. Babcock, 10 Mete, 525, 545; In re Barker, 6 Wend., 509; In the matter of the Mohawk & Hudson R. R. Co., 19 Id., 135 ; In the matter of the North Shore & Staten Island Ferry Co., 63 Barb., 556; Ex parte Holmes, 5 Cow., 426; Pender v. Lushington, L. R., 6 Chan. Div., 70. * Hoppin V. Buffum, 9 R. I., 513; Ex parte Holmes, 5 Cow., 426, 435. <* In re North Shore & Staten Island Ferry Co., 63 Barb., 556; Middle- brook V. Bank, 8 Keyes (N. Y.), 135. [Right of executor under statute. In re Election of Cape May Nav. Co., 51 N. J. L., 78. In California a surviving partner may vote partnership stock in his hands as an asset, the firm business being unsettled. Allen v. Hill, 16 Cal., 113.] 474 ELECTIONS. [chap. XX. into before the incorporation has been completed, and in snch cases the contract is to be regarded as consummated as soon as the incorporation is accomplished and the prescribed conditions are complied with. At this moment the subscriber becomes a shareholder with the right to vote as such. In other words the transaction whereby a person becomes a stockholder in a corporation is a contract, the terms and con- ditions of which are generally in large part prescribed by law, but which may embody terms and conditions not required by law, provided they are not in conflict with it. To determine when a person has become a stockholder it is necessary to determine when the contract of membership was complete by its own terms and the terms of the govern- ing statute.! It is not" necessary that a stock certificate should be issued in order to complete the contract of mem- bership in a corporation. Such a certificate is evidence of membership, but is not a necessary part of the contract.* § 651. The formalities to be observed in holdipg meet- ings of shareholders for the purpose of electing oflicers are generally regulated by statute, charter, or by-laws. If, however, regulations are prescribed by by-laws, they must be in harmony with the general provisions of the charter and with the laws under which the corporation was formed, and must no attempt to abridge the substantial rights of any shareholder. ' § 652. Due notice must be given of each meeting of shareholders held for the purpose of electing officers. Every shareholder is entitled to be present at such a meeting and to have a hearing as well as the right to vote; and therefore an election held at a meeting at which some of the stock- holders have no notice is invalid and may be set aside.* If 1 Morawetz on Priv. Corp., Sec. 56 and cases cited in notes 1, 2, 3 and 4. * Id. and cases cited in note 5. * Brewster v. Hartley, 37 Cal., 15, 24 ; People e. Phillips, 1 Denio, 388; Taylor e. Griswold, 14 N. J. Law, (Green), 222; Petty u.Tooker, 21 N. Y.^ 267 ; Morawetz on Priv. Corp., 487. * [But the appearance of all the stockholders at a corporate meeting will be construed to be a waiver of formal notice, Judah v. Am. Live Stock Ins. Ca, 4 Ind., 333; Thompson on Corp., Sec. 7ia] CHAP. XX.] OOBPOKATE ELECTIONS. 475 notice to any one is oinitted, those present have no right to go on with the election. The rule is, that power which is entrusted to the whole body of stockholders can not be legally exercised without notice to all.* § 653. Notice, however, may be given by law, or by the charter, by-laws, or standing rules of the corporation ; and if by either of these a time is fixed at which meetings are to be held for the election of ofiicers, no further notice is necessary.' As to presumption that a meeting of stock- holders has been regularly called and due notice given to all stockholders, see authorities cited in note.* § 654. Meetings of shareholders held for the purpose of electing officers of the corporation, if not held at a time fixed by some general law or some provision of the charter, by-laws, or standing rules of the corporation, must be called by persons having competent authority.* Ordinarily the officers who are to have such authority are named in the charter or by-laws which also usually determine the mode of calling such meet- ings. But in the absence of such provision, the managing agents of the company have ample authority to act in the premises." If the officers of a corporation whose duty it is to call a meeting for the election of officers shall wrongfully refuse to perform that duty, mandamus will lie to compel its performance. As to the form of the notice to be given, it is » Commonwealth «. Cullen, 13 Pa. St., 133; State v. Bonnell,35 Ohio St., 10; MacDougall v. Gardiner, L. R., 1 Ch. D., 14; People v. Railroad Co., 55 Barb., 344 ; Morawetz on Priv. Corp., Sec. 479 ; People v. Batchelor, 23 N. Y., 134; Jackson v. Hampden, 20 Me., 37; McDaniels v. Manf'g Co., 23 Vt, 274; San Bueua Ventura Manf'g Co. «. Vassault, 50 Cal., 534; People TJ. Railroad Co., 55 Barb., 344; Stockholders v. Railroad Co., 12 Bush (Ky.), 63; Morawetz on Priv. Corp., Sec 479, note 3; [Carter Gas Engine Co. v. Carter, 47 111. Ap., 36; Hill v. Rich Hill Coal Mining Co., 119 Mo.. 9]. ii Warner v. Mower, 11 Vt., 385, 391; State v. Bonnell, 35 Ohio St., 10; People V. Batchelor, 22 N. Y., 128; San Buena Ventura Manf'g Co. v. Vassault, 50 Cal., 534; Morawetz on Priv. Corp., Sec. 479. 8 Sargent v. Webster, 13 Mete. (Mass.), 497; McDaniels v. Flower Brook Manf'g Co., 23 Vt., 274; Lane v. Brainard, 30 Conn., 566, 567; Pitts V. Temple, 2 Mass., 588; Copp v. Lamp, 13 Me., 312. 4[Reilly v. Oglebay, 25 W. Va., 36; Goulding v. Clark, 34 N. H., 148.] *Stebbins v. Merritt, 10 Cush., 27; Morawetz on Priv. Corp., Sec. 480. 476 ELECTIONS. [CHAF. XX. sufficient to say that it must fix the exact time and place of the meeting in all cases; and where so provided by law, or by the charter, or by-laws, the notice must also state the nature of the business to be transacted, or the officers to be chosen. The time of the meeting must be stated with precision, and no business can be transacted before the time set.* The meeting must be opened within a reasonable time after the hour indicated in the notice or fixed by law or otherwise.* § 655. If the officers of the corporation fail or neglect to give the required notice of a meeting of stockholders for the purpose of electing officers, mandamus will lie to compel them to take such action as the law authorizes to call such an election.^ If it were otherwise, the trustees or directors and officers of a corporation might continue themselves in office indefinitely by failing to call an annual election, and the stockholders would be powerless. In most of the States there are statutes providing for the manner of calling an election in case, for any reason, the time fixed by law or by charter provision shall pass without an election being held; and the duty of obedience to such statutory provisions will be compelled by mandamus.* Where the civil law prevails, as in the State of Louisiana, if the proper authorities of the corporation refuse to act, or die, or resign, a court of equity will appoint a receiver or manager ad interim for the pur- pose of winding up the concern.^ But in a State where the common law prevails, it seems that a court of equity would not interfere in such a case, because there is an ade- quate remedy by mandamus.^ 1 People V. Railroad Ca, 55 Barb., 844; People v. Batchelor, 23 N. Y., 134 2 South School District v. Blakesley, 13 Conn., 227, 237; State v. Bon- nell, 35 Ohio St., 10. *[Mottu V. Primrose, 23 Md., 482; Congregational Society of Bethany V. Sperry, 10 Conn., 200.] ♦People V. Board of Governors of Albany Hospital, 61 Barb., 397; State of Nevada v. Wright, 10 Nev., 167; People v. Cummings, 72 N. Y., 433; Cook on Stock and Stockholders, Sec. 906. * Brown v. Union Insurance Co., 3 La. Ann., 177, 183. « Curry v. Woodward, 53 Ala., 371, 375; Knowlton v, Ackley, 8 Cush., 9a CHAP. XX.] CORPORATE ELECTIONS. 477 § 656. A meeting of shareholders for the purpose of electing officers must be held at a reasonable hour and must not be called at an unusual place where the stockholders would be unable to attend without great inconvenience.^ Such meetings must be held within the State by which the corporation was chartered, unless all the stockholders give their consent to the holding of a meeting in a foreign juris- diction,'* [or unless permitted by statutory provision].' § 657. A meeting of shareholders held for the election of officers of a corporation, unlike a general election by the people, may be adjourned from time to time, and all the shareholders are bound to take notice of such adjournment. Any business which may not have been transacted at the reg- ular meeting may be transacted at the adjourned meeting.* § 658. Upon the question of the validity of a corporate meeting held beyond the borders of the State creating the corporation, there is a serious conflict among the authorities. It has been held in a number of cases that the proceedings of such a meeting are wholly void, and not capable of being ren- dered valid by subsequent ratification by the corporation at a regular meeting.'' There are other cases holding that the votes and proceedings at such a meeting are voidable rather than void, and that they may be subsequently ratified by the corporation.® 1 [First Nat. Bank v. Asheville Furniture & Lumber Co., 116 N. G., 827.] 2 Morawetz on Priv. Corp., Sec. 488, and numerous cases cited in note 2. » [Statutes of Minnesota, 1881.J * Warner v. Mower, 11 Vt., 385. 6 Aspinwall v. Ohio, etc., R. R. Co., 20 Ind., 492, 497; Wood Hydraulic Hose Mining Co. v. King, 45 Ga., 35; Miller v. Ewer, 27 Me., 509; Free- man V. Machias Water Power, etc., Co., 38 Id., 343; Hilles v. Parrish, 14 N. J. Eq., 380; Ormsby v. Vermont Copper Mining Co., 56 N. Y., 623; Merrick v. Brainard, 38 Barb., 574. See S. C., sub nom., Merrick v. Van Santvoord, 34 N. Y., 208. *Ohio, etc., R R. Co. v. McPherson, 35 Mo., 13; Freeman v, Machias Water Power Co., 38 Me., 343. The Legislature may also validate the acts passed at such a meeting, in case it could have authorized the meeting in the first instance. Graham v. Boston, H»\rtf ord & Erie R R Ca, 118 U. S., 161, 178, affirming S. C, 14 Fed. Rep., 753. See also 478 ELECTIONS. [chap. XX. § 659. "Whatever the true rule may be, it is clear that the corporation itself can not be heard to insist that such pro- ceedings are void.* The corporation is estopped to denj the validity of such proceedings, as is also any stockholder who takes part in such a meeting.* It is equally clear that offi- cers cliosen at a meeting of stockholders held outside of tbe State, and who qualify and enter upon their duties, will be regarded as officers de facto whose acts as to third parties and the public will bind the corporation. It seems evident, however, that in the present state of the law, it is an unsafe proceeding to hold meetings for the transaction of the busi- ness of a corporation outside of the State creating it, and that it is especially desirable that all meetings of stockholders of a corporation for the purpose of electing officers, should be held within such State. § 660. At common law voting by proxy is unknown, and therefore the members of corporations must vote personally unless the right to vote by proxy is conferred by statute, or by the charter or by-laws.* It is believed that the right to vote by proxy is conferred upon the shareholders in a very large majority of the corporations in this country by express provision of statute or by the company's charter or by-laws. As to the form in which the authority to vote may be dele- Grenada Co. V. Brogden, 113 U. S., 261; Anderson r.Santa Anna, 116 Id., 358; Shaw v. Norfolk R R Co., 5 Gray, 163; Howe v. Freeman, 14 Id., 566. [The proceedings of a meeting of the board of directors of an Alabama corporation held outside that State cannot be introduced in evidence in an action in a court of Alabama unless it be first shown that the requirements of the statute (Acts 1889, p. 76) regulating the holding of such meetings outside the State have been complied with* Brockway v. Gadsden Mineral Land Co., 102 Ala., 620.] 1 Heath v. Silverthom Lead Mining Co., 39 Wis., 146. *Camp V. Byrne, 41 Ma, 535; Ohio, etc., Railroad Ca v. McPherson, 35 Mo., 13. 'Phillips V. Wickham, 1 Paige, 590, 598; Taylor v. Griswold, 14 N. J. Law, 233; 2 Kent's Com., 294; People r. Twaddell, 18 Hun, 437; Craig v. First Presb. Church, 88 Pa. St., 42; Commonwealth v. Bringhurst, 103 Id., 134. See Brown v. Commonwealth, 3 Grant's Cases, 209; State v. Tudor, 5 Day, 329; Matter of Barker, 6 Wend., 409. CHAP. XX.] COEPOKATE ELECTIONS. 479 gated, it is suflScient to say that it must be in writing and must be sufficient to reasonably insure the inspector that the agent is acting by authority of his principal ; but no pre- scribed form need be executed with any particular formal- ity.^ The authority of a proxy may be revoked at any time, unless the delegation be irrevocable as between the par- ties.2 § 661. Upon the question, by what officers shall a cor- porate election be conducted, it is sufficient to say that in so far as the mode of proceeding is prescribed by statute, or by provisions of the charter or by-laws, it is desirable that they be strictly followed, though ordinarily such provisions will be regarded as directory only, and a departure fron^ them will not invalidate the election provided there is a fail expression of the will of the majority.^ The form of pro- ceeding is in general not material, provided no positive or mandatory provision of the statute or charter is violated and the election is fair and orderly.* It is not essential, in the absence of an express provision of law or of the charter, that the corporate officers shall conduct the election.^ The cor- porators, when assembled, may exercise the power of ap- pointing inspectors for the purposes of the election, if the lUe St. Lawrence Steamboat Co., 44 N. J. Law, 529, 534; Re Cecil, 36 How. Pr., 477; Marre v. Garrison, 13 Abb. New Cas., 210; Cool£ on Stock and Stockholders, Sec. 608. 2 Reed v. Bank of Newburgh, 6 Paige, 337. 3 [An election of directors of an incorporated company will not be set aside on a summary application for that purpose on the ground that the inspectors were not sworn in the form prescribed by the stat- utes; and it seems that an election would not be set aside upon such application, although no oath was administered to the inspectors, if no objection was interposed at the time of the election. It is enough that they were duly appointed and entered upon the discharge of the duties of their office. In the Matter of the Election of the Directors of the Mohawk & Hudson R. R. Co., 19 Wend., 135.] * Fox V. Allensville, etc., Turnpike Co., 46 Ind., 31; Cook on Stock and Stockholders, Sec. 605. 5 People V. Twaddell, 18 Hun, 437. 480 ELECTIONS. [chap. XX. inspectors provided for by law fail to act ^ or are restrained by injunction.* § 662. "When the shareholders of a corporation are as- sembled for the purpose of electing officers, they have the right to appoint inspectors or judges of election.' This right belongs exclusively to the shareholders and cannot be exercised by the board of directors. § 663. Concerning the reception of illegal votes, it is suf- ficient to say that the rules which are to determine whether the election is thereby vitiated are the same with respect to corporate elections as in cases of elections by the people. These rules have been sufiiciently stated elsewhere in this work.* § 664. "What is known as cumulative voting in private corporations is provided for by constitutional provisions in several of the States, and among them Illinois, Pennsylvania, "West Yirginia, Nebraska, Missouri and California. These constitutional provisions provide in substance that the vot- ing power of each shareholder shall be the number of shares he owns multiplied by the number of directors, and that he may divide this power among as many candidates not greater than the whole number to be elected, and in such propor- tions, as he shall see fit. There seems to be no reason to question the validity of these provisions in so far as they apply to corporations organized after their adoption ; but it has been held that they are unconstitutional as impairing the obligation of contracts and infringing on vested rights so far as they concern corporations chartered before the adoption of the Constitution,® 1 Matter of Wheeler, 2 Abb. Prac. (N. S.), 361. 2 People V. Railroad Co., 55 Barb., 344. 3 State V. Merchant, 37 Ohio St., 251. * See, however, Morawetz on Priv. Corp., Sec. 485, and cases cited in note. * Hayes v. Commonwealth of Pennsylvania, 82 Pa. St., 518; State v. Greer, 78 Mo., 188; S. C„ 8 Am. and Eng. Corp. Cas., 322; Cook on Stock and Stockholders, Sec. 609; Commissioners v. Harper, 38 111., 103. And see Morawetz on Priv. Corp., Sec. 1059. CHAP. XX.] COBPOKATE ELECTIONS. 481 § 665. It is held in New York that where a corporate election is held for the purpose of choosing a board of di- rectors composed of a given number, any stockholder may vote for any number of candidates not exceeding the whole number to be chosen.^ In that case thirteen directors were to be elected, and one of the tickets voted contained the names of only seven persons, and it was held that the ticket was not void because it did not contain thirteen names. Davis, P. J., said: " JSTo stockholder was bound to vote for any larger num- ber of persons than he chose, and any number of persons receiving a majority of lawful votes are elected, although there be a failure to elect the full number required by law." It would seem, therefore, that while a stockholder cannot concentrate more votes than he is entitled to cast upon a number of candidates less than the whole number to be chosen, unless authorized so to do b}'" the express statute or constitutional provision,^ yet he may cast the votes he is en- titled to cast for any number he chooses not exceeding the whole number to be elected. § QG6. Where an election was held for the purpose of choosing seven directors of a corporation, and a cumulative system of voting was adopted as authorized by the Consti- tution of Pennsylvania, and five directors only received the necessary pluralities, it was held that said election was valid as to the five directors so chosen, and that they had full power to act as a board, even though the remaining two di- rectors were not chosen.' 1 Vandenburgh v. Railroad Co., 29 Hun, 348. 2 Hayes v. Commonwealth, 82 Pa. St., 518; Pierce v. Commonwealth, 104 Pa. St., 150. 8 Wright V. Commonwealth, 109 Pa. St., 560. [Where, by an act in- corporating an insurance company, the management of the stock and affairs of the corporation was given to a board of twenty-three di- rectors to be annually elected, a major part of whom by the act were competent to the transaction of all the business of the corporation, and an election of the directors took place, at which only twenty-two per- sons received a plurality of votes, such twenty-two persons were duly 482 ELECTIONS. [chap. XX. § 667. In a late case in Pennsylvania it is held that the directors of a corporation have no power to accept the pro- visions of a constitutional amendment authorizing cumula- tive voting where the charter gives each stockholder one vote for each share of stock.* § 668. In corporate elections, as well as in elections by the people of public officers, the rule has been established that votes cast for a disqualified or ineligible candidate are not thrown away so as to make the election fall on the candidate having a minority of votes, especially if it is not shown that the stockholders casting such votes had knowledge of the fact which rendered the candidate voted for by them ineli- gible and disabled by law from holding office.^ § 669. It is well settled that a failure to elect officers at the time fixed by law does not work a dissolution of the cor- poration. The old officers will hold over until their succes- sors are duly elected.' § 6Y0. The duration of the official term of officers of cor- porations is in this country very generally fixed by statute or charter provision. It is almost always provided in terms that the officer shall hold for a definite period and until his successor is elected and qualified.* In England and accord- ing to the common law, it seems that officers of corpora- tions do not hold over until the election and qualification of their successors, unless by express provision of statute or charter. The right to hold over did not, by common law, elected and took the place of their predecessors, notwithstanding that it chanced that the full number of twenty-three directors was not filled up. In the Matter of the Union Insurance Co., 23 Wend., 591.J 1 Baker's Appeal, 109 Pa. St., 461. « Re St. Lawrence Steamboat Co., 44 N. J. Law, 529, 535, citing Regina V. Coaks, 3 E. & B., 249; Regina v. Mayor of Tewksbury, L. R, 3 Q. B., 629; Drinkwater v. Deakin, L. R., 9 C. P., 626; Etherington v. Wilson, L. R., 20 Eq., 606; Re Long Island R. R. Co., 19 Wend., 37; Downing u Potts, 3 Zabr., 66; [In re St Lawrence Steamboat Co., 44 N. J. L., 529 J. 'State V. Bonnell, 35 Ohio St., 10, 17; Smith v. Silver Valley Mining Co., 64 Md., 85; People v. Twaddell, 18 Hun, 427; Reilly v. Oglebay, 25 W. Va., 36, 43. < [Nathan v. Tompkins, 82 Ala., 437.] CHAP. XX.] OOEPOKATE ELECTIONS. 483 exist by implication, and was not an incident to the office.* A different doctrine, however, prevails in this country, and it is here very generally held that, even in the absence of a provision for holding over, corporate officers may continue to discharge the duties of their offices until their successors are chosen and qualified. In other words, unless there is a statute to the contrary, corporate officers will hold until their successors are qualified so as to take their places.^ It is not, however, necessary that the restriction against holding over should be express. It may be implied by the use of any language which clearly shows the intention of the Legislature to limit the tenure strictly to a definite period; as, for ex- ample, where it is provided that the officers shall be annu- ally elected on a particular day, and that they shaU hold from one election day till the next, or that they shall be elected for the year ensuing only. In such cases they can- not hold over beyond the fixed term.' § 6T1. The law affords several distinct remedies, either of which may be pursued by parties aggrieved by illegal or fraudulent corporate elections.* In the first place, the com- 1 DilL on Munic Corp., Sec. 217; Rex v. Atkins, 4 Mod., 13; Rex v. Thornton, 4 East, 294. 2 Dill, on Munic. Corp., Sec. 219; People v. Runkel, 9 Johns., 147; Slee V. Bloom, 5 Johns. Ch., 366, 378; 2 Kent's Com., 288; Kelsy v. Wright, 1 Root (Conn.), 83; South Bay, etc., Co. v. Gray, 30 Me., 547; Chandler v. Bradish, 23 Vt., 416; Overseers of Poor v. Sears, 22 Pick., 122, 130; School Dist. V. AUerton, 12 Mete, 105; Dow v. Bullock, 13 Gray, 136; McCallu Byram, etc., Co., 6 Conn., 428. *Dill. Munic. Corp., Sec. 220 and cases cited in notes; Tuley v. State, 1 Ind. (Carter), 500, 502. [When the charter of a corporation provides that annual meetings for the election of directors shall be held by the stockholders, the directors cannot by a by-law so change the time of holding the annual election as to continue themselves in office more than a year against the wishes of the holders of the majority of the stock. Elkius v. Camden & Atlantic Ry. Co., 36 N. J. Eq., 467. As to expiration of term of one elected to fill a vacancy, see State ex rel. Piper V. Batt, 38 La. Ann., 955.] ♦ [Mandamus will lie upon the petition of a private corporation to compel the surrender to its proper oflBcers of books and papers pertain- ing to their offices and held by persons actually but unlawfully exeiv 4:84 ELECTIONS. [chap. XX. mon-law remedy by action of quo warranto in the name of the State upon the relation of the parties aggrieved will lie to try the title of the person claiming an office by virtue of such an election ; * or if action by quo warranto has been, by the law of the particular State, supplanted by a statu- tory remedy of a similar nature, this can be resorted to for the same purpose.^ The rules and principles applicable to elections of public officers in general which are treated of in other portions of this work will apply, with few if any ex- ceptions, to such a suit. Besides proceedings in quo war- ranto at common law or under statute regulating the contest of elections, there is a concurrent remedy in equity in a par- ticular class of cases.' Where the question of the validity of an election arises incidentally in a proceeding in equity, the court will inquire into it and pass upon it.* And it has been held that fraud in the election of directors of a corpo- ration will give a court of equity jurisdiction to set the same aside.' In the latter case the opinion was expressed by the court that " if the election of certain persons as directors is the result of a conspiracy, a court of chancery will find its cising the functions of those offices under a claim of right, but having usurped the oflSces under the choice of a minority of the stockholders by the use of illegal votes. Am. Railway-Frog Co. v. Haven, 101 Mass., 398. The directors of a corporation cannot dispute the right of a stock- holder holding a majority of the stock to have an election in accord- ance with the by-laws of the corporation, on the ground that he intends to use his legal rights for purposes detrimental to the interests of the corporation, and that the proposed election is a step towards the illegal control of the property. Camden R. R. t?. Elkins, 37 N. J. Eq., 27a] 1 [Jenkins v. Baxter, 160 Pa. St, 199.] 2[Tomlin v. Farmers' & Merchants' Bank, 52 Mo. Ap., 430; In re St Lawrence Steamboat Co., 44 N. J. Law, 529.] 3 [An injunction will be granted to restrain the voting of stock in violation of the charter provisions of a corporation, and to restrain a transfer made for the purpose of fraudulently controlling an election. Webb V. Ridgely, 88 Md., 364; Busey v. Hooper, 35 Md., 27.] * Mechanics' National Bank, eta, v. Burnett Manf g Co., 32 N. J. Eq., 236; Johnson v. Jones, 23 Id., 216. 8 Davidson v. Grange, 4 Grant's Ch. (Upper Canada), 377; Wads worthy etc.. Gaslight & Coke Co. v. Wright, 18 W. R, 72a CHAP. XX.] CORPORATE ELECTIONS. 485 arm long enough to deal with such a fraud." It has also been held, irrespective of statutory provision, that the share- holders in a private corporation have such an interest in its affairs as justifies them in appealing to a court of chancery to try and determine the validity of an election of directors.^ [But a stockholder who, with full knowledge of the objec- tions to the legality of a certain class of votes, attends a meeting of the corporation, participates in its deliberations, and acquiesces in its decisions by canvassing and voting in the election of officers, cannot question the title of the offi- cers elected on the ground that such class of votes was ille- gal.] ^ Injunction cannot be maintained for the purpose of de- termining the question of contested election of directors of a corporation.' I In re Election of St. Lawrence Steamboat Co., 44 N. J. Law, 529. But see New England Mut. Ins. Co. v. Phillips, 141 Mass., 535; 13 Am. & Eng. Corp. Cas., 104. '[Thompson on Corporations, Sec. 787; State v. Lehre, 7 Rich. Law (& C), 234] 8 New Eng. Mut. Life In& Co. u Phillips, 141 Mass., 535; 13 Am. & En& Corp. Cas., 104. [But where an office in a corporation has been ob- tained by fraud, this confers on a court of equity jurisdiction to inquire into the validity of such election for the purpose of restraining by in- junction the acts of one claiming office thereunder. Johnston v. Jones, 23 N. J. Eq., 216. See, also, Elkins v. Camden & Atlantio By. Ca, 36 N. J. Eq., 467.] CHAPTER XXL STATUTORY REGULATION OF ELECTION&* § 673, 673. Importance of the subject. 674. Evils of crowding the polling places. 675. Multiplication of voting precincts. 676. Complete registration. 677. Non-partisan election boards. 677. Presence of witnesses representing all partiea 678, 679. Counting of votes without delay. 680. Protection of voters against intimidation and violenca 681. Fraudulent ballots. 681. Regulation as to size and form of ballot. <582. Summary of necessary provisions. 683-689. Existing statutes. 684. Recent act of Kansas Legislature to prevent crowding at polls. 690. Provisions against counting ballots so printed as to mislead voters. § 672. Experience has shown that the careful revision and amendment of the statutes of most of the States regulating the conduct of elections is a matter of the first importance. In the hope of directing the attention of legislators to this subject, of stimulating its consideration, and of securing the much needed action, this chapter has been prepared and is here inserted. The design of the author is not only to show the importance of the subject, but also to submit some practical and, he hopes, useful suggestions as to the character of the legislation re- quired to secure and preserve that without which free gov- ernment is impossible — the freedom and purity of the ballot.^ 1 [The general adoption by the States of the Australian ballot system, embodying the reforms suggested in this chapter, and the consequent revision of the election laws mentioned herein as in force at the time the chapter was written, make it impracticable to indicate adequately by foot-notes the changes which have taken place. The chapter is there- fore reproduced as originally published, the following chapter being de- voted to the Australian system, the provisions of which have very gen- erally superseded the statutes of the different States referred to herein.] * This chapter is taken, in substance, from an article on " Our Election Laws," prepared by the author and published in " The North American Reinew " for May, 1879. OHAP. XXI.] 8TATUT0KY REGULATION. 487 § 673. A government based upon popular suffrage can be successful in the best sense only to tlie extent that the popu- lar voice is freely expressed, fairly and honestly ascertained, and fully obeyed. It is therefore of the greatest consequence that the purity and sanctity of the ballot should be guarded by the wisest and best legislation that statesmanship can de- vise. It is impossible to over-estimate the importance of this subject in a government such as ours, where the supreme power is vested only in the people, to be exercised by means of the ballot. Fairness and honesty in the conduct of elec- tions will alone keep pure the sources of power in this gov- ernment, and thus promote peace and good order and give stability to our institutions. Our election laws ought to be framed and executed with a view to securing these great ends, but truth compels the statement that our statutes are exceedingly imperfect in themselves, and, what is worse, are too often administered in the interest, not of purity and jus- tice, but of party. It is not to be denied that many of the wisest and best of our citizens consider that our institutions are in peril, from the fact that popular elections are so fre- quently controlled by fraud and violence. Wise and prudent citizens may well say that, if we lose faith in the machinery provided for the expression of the popular will, we must also eventually lose faith in our form of free government, since it can be valuable only in proportion as it is in fact, as well as in theory, a government by the people. As our population increases and our great cities multiply, the problem of how to secure and preserve freedom and fairness in elections, grows annually more grave and difficult. It is to-day a ques- tion of how to secure and record a fair and honest expression from at least ten millions of voters. "Within the lifetime of some of the present generation it will become a question of dealing with at least forty millions of voters. To be assured that this problem has been solved, is to know that our great- est danger has been removed, and therefore every citizen should be willing to contribute something toward its solu- tion. Let it be premised that the ends to be aimed at by 4:83 ELECTIONS. [chap. XXL legislation upon this subject are (1), to secure to all legal voters equal and ample opportunity to vote, and to exclude all others; and (2), to secure a fair canvass and an honest declaration of the result of every election. No difference of opinion can exist among honest men as to the propriety, nay the necessity, of securing these ends, which all will admit constitute the foundation upon which the fabric of free gov- ernment rests. To render them secure, is to perpetuate our institutions and transmit them pure and strong to future generations. It would seem that no State should hesitate to provide the legislation necessary to secure ends so manifestly just, and so essential to the very existence of free govern- ment. Many of the laws upon this subject were originally enacted for the government of a largely rural and agricultural population, who needed few if any restraints, and they have been copied and applied to communities very differently situ- ated from such a population, and, as a whole, by no means so well disposed toward law and order. Assuming that the ends to be sought are freedom and equality among voters, and honesty and perfect fairness in the count, and that these great ends are not always secured under existing laws, let us inquire how we may remedy existing evils by legislation. It is believed that plain, simple, and ample remedies are within our reach, the adoption of wliich would injure none, while, as nearly as human laws can do so, they would protect the rights of all. § 674, First in importance as a means of securing free- dom in elections, are such statutory provisions as will prevent the crowding of the polling places by large numbers of people. In some of the States all the voters of an entire county may vote at the county seat, and in all the large cities, and in many of the smaller ones, the crowds that assemble at the polls are large and often disorderly and turbulent. The evils that result from overcrowding the polling places are apparent enough: 1. It delays the process of voting so that each voter CHAP, XXI.] , STATFIOEY REGULATION. 489 waiting for his turn may be detained for hours. Many busi- ness men, who value time more highly than the right of suffrage, are deterred from voting by this consideration alone. 2. It makes it a difficult and disagreeable task for quiet, orderly people, and especially for the sick, lame, and infirm, to press their way through the throng, and many of these are thereby deterred from voting. 3. It makes it impossible to consider with deliberation and decide intelligently questions arising at the polls as to the qualifications of persons whose votes are challenged, and this leads to erroneous rulings. But, what is worse, it affords evil-minded persons the opportunity, by frequent challenges and by unnecessary discussion, to so delay the proceedings as to consume the day and exclude large numbers of legal voters, who by these interruptions, are prevented from reach- ing the polls within the time required. 4. The practice of crowding the polls by the members of one party, who open the way for their friends and put all possible obstacles in the way of their opponents, is frequently resorted to as a means of defeating a full and fair vote. § 6T5. All these mischiefs can be remedied by requiring a multiplication of voting precincts to such an extent that only a limited number of voters — say not over three hundred — shall be residentg of, and voters in any one precinct. This, with a further provision requiring every voter to register and vote in his own precinct and in no other, would, if adopted in all the States, work a reform of vast importance and con- sequence. This very important subject of legislation is by no means the most difficult one with which our law-makers have to deal. The task of providing against the most crying evils of our system of election laws should be approached with the conviction that the people can well afford to be put to some pains and expense in order to protect the purity of the ballot, and, if thus approached, the problem will be found very easy of solution. The multiplication of voting 490 ELECTIONS. [chap. XXI. precincts will prove an effectual remedy for all the evils which result from overcrowding the polling places, some of which are specified above. A properly guarded statute upon this subject would secure as a rule, snfRcient time and opportunity at each poll for the orderly, deliberate and satis- factory transaction of the business of receiving and deposit- ing the ballots of all legal voters, and for the examination and decision of disputed questions arising at the election. Let us suppose that a population containing three hundred voters be the basis upon which election precincts are to be organized, who does not see that, with only that number of votes to be received in the course of the day, the election could be conducted decently and in order? Contrast such an election with the attempt in a great city to receive the ballots of many thousands of voters and pass upon hundreds of challenges 1 § BYfi. In connection with the increase of the number, and the reduction of the size, ot precincts, there should be pro- vided a complete registration, and by this is meant an enumeration of the legal voters of each precinct, made with the utmost possible care. By requiring that each precinct shall be small in the sense of containing only a limited number of voters, and by appointing a board of registration for each precinct, it will be practicable and easy to enroll every voter. This process is especially necessary in the city precincts, and its application only to them would probably be entirely sufficient. If the precinct is not too large in the country, the judge of the election or the bystanders will be able to recognize the voters, with rare exceptions. But in the cities, where the registry must be relied on, provisions should be made to render it accurate, and none but registered voters should be allowed to vote. The persons preparing the lists should be required, if necessary, to go from house to house, and by all reasonable means to make sure that no legal voter is omitted, and the voters themselves should be made to know that they must register if they wish to enjoy the CHAP. XXI.] STATUTOKY BEGULATION. 491 franclii&e. Whoever neglects to enroll himself as a voter, can not complain that he is not allowed to vote. The registry list should be printed or written, and posted up at the most public places in the precinct at least ten days prior to the day of election, and corrections and additions should be made up to the day before the election. With these two requirements, namely, small precincts and complete registration, how easy becomes the task of receiving and depositing in the box the ballots of all who are entitled to vote! There can be no objection to these provisions, except that they propose a multiplication of election officers, and some additional labor and expense. To this objection we reply that the end is so important that, in comparison with it, the trouble and expense made necessary to secure it are not worthy of a moment's attention. If, however, the cost must be considered, it may be suggested that by having fewer elections, a corre- sponding saving would be made. Let our officials be chosen for longer terms. This would save much in the way of expense, and at the same time benefit the people by relieving them from the continual excitement and agitation caused by the struggle of parties for office and power. Another great advantage would result from the adoption of small precincts. The voters would be very generally known to each other, and in no single precinct would it be possible for any considerable number of non-residents, or otherwise disqualified persons to cast fraudulent votes without detection. Nor would it be possible for fraudulent voters to personate absent or deceased persons. In a precinct composed of only a small number of voters, generally known to each other, such frauds would be impossible. § 677- It may be said that some of the worst frauds are committed with the assistance or connivance of the officers of election, and that, therefore, fraud in the election or in the count would be possible, notwithstanding the reduction of the size of precincts. This is very true, and the suggestion brings us to the next essential of an efficient election law, 492 ELECTIONS. [chap. XXI. which is such provision as will prevent the selection of purely partisan election boards. All parties in interest should be represented in each board of election officers, and by wit- nesses to be present. The officers of the election should be required to perform all their official duties in the presence of each other and in the presence of a limited number of witnesses representing the several parties to the contest. No conidserable fraud can be committed by an election officer without the knowledge of all the members of the board; and, therefore, great security is to be found in a statute re- quiring all sides to be represented upon such boards. Add to this a provision requiring the admission to the room where the ballots are received, deposited and counted, of at least one witness on behalf of each party interested, and great frauds with the knowledge or connivance of the board will be become practically impossible. The witnesses should not be clothed with authority to interfere (otherwise than any citizen might, through the proper judicial proceedings) with the action of the officers; but should be permitted to witness every step in the progress of the election and the count, and to verify the correctness of the same. Officers of the law who propose to do their duty, and nothing more nor less, can not reasonably object to the presence of wit- nesses representing the parties most interested, and officers who are capable of a violation of duty should not be per- mitted to object. It is a safe and sound principle, and one which ought to be applied to the preparation of election laws, that men are not apt to commit crime in the presence of witnesses. Let the law be so framed that every step, from the opening of the polls to the completion of the count and the announcement of the result, shall be taken in the presence of at least two intelligent witnesses representing opposing candidates, and the chances of successful fraud will be reduced to the minimum. S (^'79i. There is another mode of cheating which demands attention, and should be guarded against by legislation; and CHAP. XXI.] STATUTORY KEGULATION. 493 that is, by tampering with the ballots after they are cast and before they are counted. This is generally done after the polls are closed. If the law permits, the board is apt to ad- journ and its members to separate, for a time, during which a strict and honest watch over the ballot-box is not always kept. The only remedy is to require the votes to be counted immediately after the closing of the polls, and to strictly forbid the separation or adjournment of the board until the count is completed and the returns signed. It is of the utmost importance that the statutes of every State should imperatively require an immediate canvass by officers and before witnesses representing both sides. "What would the people of this country say to a proposi- tion that Congress and our State Legislatures should sit with closed doors, excluding all witnesses from their presence, or that courts and juries should try causes in secret? The sug- gestion, would, of course, meet with a storm of dissent and denunciation from all parts of the land. With equal, if not greater reason, may the people demand the utmost publicity in the proceedings of a popular election, whereby Congresses and Legislatures are made and unmade. S 679. Legislation upon this subject should not be based upon the theory that officers of election will always do right. If that were the fact, no penal election laws would be neces- sary. On the contrary, the law should, if possible, be so framed that an election officer shall not, if he would, defraud the electors without exposure and punishment. In this con- nection is further seen the importance of the first named essential of an efficient election law, namely, small voting precincts; for if the number of ballots to be counted does not exceed three hundred, the time required for the canvass will not be great, and the work can conveniently be done without an adjournment or separation of the board. § 680. It is scarcely necessary to say that no statute regu- lating elections can be complete without containing ample provision for the prevention of every species of intimidation 494 ELECTIONS. [OHAP. XXL of voters, whether bj violence, the exhibition of force, threats, or other means. In a well ordered community this crime will be rarely committed, and in every such commu- nity public opinion will demand its prompt and severe pun- ishment. The law should be so framed as to guard with scrupulous care the perfect freedom of the ballot, and every attempt to rob even the poorest and weakest elector of his free choice should be regarded as a high crime, since the rights of all are involved in the question of the protection of the rights of each. § 681. Another mode of cheating at elections is that known as the tissue-ballot fraud and other kindred contri- vances, by means of which one person may deposit in the box a number of ballots. For this a plain, simple and effectual remedy will be found in the enactment of a law prohibiting altogether the employment of such ballots, and forbidding the election board to count them if cast. This can be ac- complished either by fixing the size of the ballots to be used, or by requiring the voter to place his ballot in an envelope containing nothing else, and hand it thus to the officer authorized to receive it. § 682. From what has now been said it will be seen that every efficient election law must, among other things, pro- vide: 1. For small voting precincts. 2. That an elector shall vote only in the precinct of hit residence. ~^ 3. For complete registration, especially in cities, and only persons registered to be allowed to vote. 4. For representation of all parties on boards of election and registration. 5. For the presence with the officers of election, at all stages of the proceedings, of witnesses representing the par- ties in interest. 6. For a canyass of the vote immediatelj upon the dose CHAP. XXI.] STATUTORY KEGULATIdf. 495 of the polls, and without an adjonrnraent or separation of the board. 7. For the punishment of violence *nd intimidation. 8. For the prohibition of the use of tissue ballots, and kindred fraudulent contrivances, including the use of printed slips pasted over names, and of bailofts made to resemble a regular ticket of one partj, but with the name of one or more candidates of the opposite party in^-crpolated therein. 9. For the prohibition of th'B crowding of the polling places by standing, or distribirtiag tickets, within fifty feet thereof. These, in addition to the ordinary directory provisions, are essential. Experience will doubtless show the necessity for other and further enactment?. § 683. Let us now refer to some existing election laws, in order to show how far they are deficient if judged by these requirements. In most of the States the statutory provisions regulating the formation and fixing the extent of election precincts, are exceedingly imperfect. In probably a majority of cases the subject is committed absolutely to certain county officers — as for example, in Alabama, Colorado, Florida and Nebraska, to the county commissioners; in Arkansas and California, to the county supervisors; in North Carolina, to the board of jus- tices of the peace; and in Tennessee, Texas and West Vir- ginia, to the county court. In at least twenty-four States neither the number nor size of precincts is fixed by law. In several States, towns or townships in the country and wards in the cities are constituted election precincts, which is a very excellent arrangement, so far as the rural districts are con- cerned, but often works very badly in cities where the wards are generally altogether too large and populous for convenient election precincts. In two States only (New York and Ore- gon) do we find such legislation on this point as seems to be required. In Oregon it is provided that election precincts shall not contain more than three hundred voters, and in New 496 ELECTIONS. [chap. XXI. York the maximum in cities is eight hundred voters. In those States where the matter is confided to local officers (and they include a great majority of the States), there is great temptation to partiality and injustice in the designation of precincts Mid of voting places. Purely partisan considera- tions too often control the action of the local authorities. In some instances it would seem that polling places have been arranged with a view to render it very inconvenient, if not impossible, for large numbers of electors to cast their votes. § 684. By act of March 4, 1887, the Legislature of Kan- sas wisely provided that no person should distribute tickets or remain standing within fifty feet of the polls during the hours that the polls are open. The purpose of this enact- ment is to prevent the crowding of the polling places. § 685. A number of the States have enacted registry laws. Very few of them, however, contain provisions limit- ing the right of voting to registered electors, and for making the registry perfect and complete in advance of the day of voting. These, as we have seen, are very necessary provisions. Any statute that leaves open the question of the right of non- registered persons to vote, and devolves the duty of deciding in each case upon the election board, on election day, will prove a frail barrier against fraud. Let the registry list be prepared with the most painstaking care, by a board of regis- tration composed of persons belonging to the difierent politi- cal parties; and let all persons not registered be excluded from the privilege of voting. § 686. As to the place of voting, some of the States still continue the vicious practice of permitting an elector to vote anywhere in the county of his residence. Such seems to be the law in Arkansas, California, Georgia, Kentucky and Ore- gon. It is, however, gratifying to be able to state that the tendency of legislation is very strongly toward the sound and »aliitary doctrine that each elector should be required to vote CHAP. XXI.] STATUTORY REGULATION. 497 in the neighborhood of his residence, and where he is likely to be known to election officers and bystanders. § 687. Several of the States have recognized the impor- tance of providing for the presence with the election officers of witnesses representing the parties to the contest — a most important step in the right direction, and one which every State should adopt. For example, the law of Alabama pro- vides for the presence of iive of each party; that of Florida provides for the presence of one representative of each politi- cal party that has nominated candidates; that of Illinois, for the presence of two legal voters of each party to the contest; those of Kansas and Oregon permit the presence of the can- didates in person, or of not exceeding three of their friends. Similar statutes are also to be found in Pennsylvania and Yir- ginia. The very important requirement that the board of election officers should be composed of members of different political parties, is omitted from the statutes of twenty-two States. Comment upon this fact is quite unnecessary. §'688. The equally necessary requirement that there shall be a count of the votes immediately upon the close of the polls is, I am glad to say, to be found in the statutes of nearly all the States. A few, however, have omitted it. Thus, in Mississippi, if the canvass is not finished by 12 p. m., it may be completed the next day. And in South Carolina it is provided that the board of managers may have three days: in which to deliver to the commissioners of election the poll list and the boxes containing the ballots, and that t^e com- missioners of election shall meet at the county seat on the Tuesday next after the election, and proceed to count the votes of the county. In this State there is no law providing for til? count of the precinct vote at the place of voting, but. both boxes and ballots are to be carried to the county seat and tiiere canvassed by a board of commissioners, nearly a week a&er the close of the polls. This statate reads as if it might little been &«med with & view to provide ample oppor- 33 498 ELECTIONS. [chap. XXI. tunity for tampering with tlie ballots between the day of elec- tion and the day of counting. § 689. The form and size of the ballot are regulated by law in but few of the States. In twenty-two States no law is found upon the subject. In several others it is provided that all ballots shall be printed or written on plain white paper. In CaHfomia they are required to be four inches in width and twelve inches in length, and there is a similar statute in Nevada. Except in these two States there is no law to forbid the use of a ballot printed in the finest pos- sible type, and on the smallest possible piece of paper. It is well known that the absence of this regulation has given rise' to some very gross frauds in recent years. § 690. A common method of fraud is by printing slips containing a candidate's name and pasting them over the name of another candidate which has been printed upon a particular ticket; or by printing tickets resembling those of one or the< other of the competing parties, but with the name of some onei candidate thereon omitted and that of his opponent substituted. By these and similar means voters are often deceived, espe- cially where the ballots contain numerous names. To pre- vent fraads of tibis character, statutes are sometimes enacted rendering invalid all ballots of the character here indicated and requiring their rejection by the canvassing officers.* Su^ le^lation is well calculated to suppress the evil prae- tioM above named, and the instances in which any injustice will be caused thereby vsdll be rare, especisdly after the statute becomes familiar to the people. ^ See act of Kansas LegklAture, approved Mu«h i, 1887, Sess. Jjkwu^ page ms. CHAPTER XXII. THE AUSTRALIAN BALLOT SYSTEM. 691. Origin of the system and introduction in other countries. 692. Introduction in the United States. 693. Provision for an official ballot. 694. Directions governing printing of ballots. 695. Size and style of, and arrangement of names upon the ballots. 696. Rule where one candidate is named for same oflSce by two or more parties. 697. Manner of nominating candidates and filing certificates of nom- ination. 698. Duty of Secretary of State when certificates of nomination are filed by rival factions of a party. 699. The limitation of the right to have ballots printed at public ex- pense and to have names of candidates printed thereon, not unconstitutionaL 700. Right of the voter to vote for the person of his choice. 701. Right of a political convention to delegate authority to make nominations. 703. A candidate nominated by individual electors not the nominee of a political party. 703. Nomination papers; how signed. 704. Mass conventions not prohibited in Minnesota. 705. Provisions of the statute concerning certificates of nomination; mandatory or directory. 706. Other provisions liberally construed. 707. What constitutes filing of certificate of nomination. 708. Petitioners may proceed by mandamus to compel officer to oei^ tify the name of a candidate. 708. Effect of wrongful certificate as to a part of the candidates upon the ballot. 709. Certificates for filling vacancies. 710. Printing and distribution of sample ballots. 711. Sample ballots voted by mistake; effect of. 713. Appointment of judges, clerks, challengers and watchers. 713. Voting compartments. 714. Act of voting; how accomplished. 715. Provision requiring voter to prepare ballot in voting compli- ment. 500 ELECTIONS. [chap. XXII. § 716. Provision requiring initials of two judges of opposite parties upon the ballot not mandatory. 717. The requirement that the ballot must bear the initials of a judge of election held unconstitutional in Nevada 718. Assistance to disabled voters. 719. Assistance, how rendered. 720. Provisions defining manner of marking ballot generally held to be mandatory. 721. Use of distinguishing marks. 722. Effect of marks accidentally made. 723. Effect where voter writes his name upon the ballot. 724 General principle applicable in determining whether provisions are mandatory or directory. 725. Primary elections in Kentucky held under Australian system. 726. Separate ballots and ballot-boxes provided for women in some States. 727. General provisions for the prevention of fraud. 728. Use of voting machines authorized in Michigan and New York. 729. Voting machines; how constructed and operated, § 691. The Australian Ballot System is said to have been the conception of Francis S. Dutton, member of the Legis- lature of South Australia from 1851 to 1865. The elections act of 1857-58 embodied his idea of the secret ballot, and is the basis of the system now generally in force in the United States as well as in England and upon the continent of Europe. The measure, though first agitated in South Aus- tralia, first became a law in Yictoria in 1856. It was adopted in Tasmania and New South Wales in 1858, by 'New Zealand in 1870, and later by Queensland and West Australia. On May 30, 1872, the English Ballot Act (Statutes 35 and 36 Yictoria, ch. 33) was passed by the English Commons. It contains the salient features of the South Australian act, modified and adapted to new conditions. Following its adoption by the mother country came the introduction of the system in British Columbia in 1873;^ in the province of Ontario, March 24, 1874 ;2 in Canada, May 26, 1874; ^ in the 1 Ballot Act, 36 Vict, Na 6. « Ballot Act, 37 Vict., ch. 5. « Dominion Elections Act, 37 Viot., oh. 9. CHAP. XXII.] AUSTKALIAN BALLOT SYSTEM. 501 province of Quebec, February 23, 1875; in Nova Scotia, May 6, 1875 ; ^ in the Northwest Territories, December 18, 1885, and in Manitoba, May 28, 1886.' The European countries which have followed England in this reform are Belgium, which adopted the English system somewhat simplified on July 9, 1877, and Luxemburg in 1879, while in Austria, Italy and Norway laws providing for the secrecy of the ballot are in force, resembling in many re- spects the Australian system.' § 092. In the United States, the first States to adopt the Australian ballot sj^^stem were Massachusetts,* Indiana,** "Wis- consin ® and Montana.'^ The successful operation of the system as enacted in these States has led to its general adoption by the diflferent States,^ and it is now common to every State in the Union except the Carolinas, Georgia and Connecticut. It is the purpose of this chapter to outline the salient features of the system iStatutesof 1875, ch. 36. 2 Election Act of 1886, ch. 29. * Wigmore's Australian Ballot System, pp. 3-31. * In force November 5, 1889. * Approved March 6, 1889. 8Adoptedinl889. Un force June 1, 1889. 8 Alabama: Law approved February 21, 1893. Arkansas: Law adopted in March, 1891. California: Law adopted in 1891 ; Law amended March 28, 1895. Colorado: Law approved March 26, 1891; in force June 25, 1891; amended February 27, 1894. Florida: Law approved May 25, 1895; amended May 30, 1895. Illinois: Law approved June 22, 1891; in force, July 1, 1891. Indiana: Law approved March 6, 1889; in force June, 1890; Iowa: Law approved April 2, 1892 (ch, 33, Acts 1892). Kansas: Law approved March 11, 1893 (ch. 78, Session Laws of 1893). Kentucky: Law adopted June 30, 1892. Louisiana: Law approved July 9, 1896 ^Act No. 137, Laws of 1896). Maine: Law adopted March, 1891 (ch. 102, Laws of 1891); amended in 1893 (ch. 267, Laws of 1893). Maryland: Law adopted in 1890; amended in 1896 (ch. 202, Laws of 1896). Massachu- setts: Law in force for first time at State election, November 5, 1889 (Laws of 1889, ch. 413); amended by ch. 417, Laws of 1893; amended by ch. 469, Laws of 1896. Michigan: Law approved July 3, 1891 (Public Acts of 1891, p. 256); amended by Public Acts of 1895, Act 271. Minn©- 502 ELECTIONS. [chap. XXII. as in force in the different States, and to review the decis- ions of the courts construing the laws so adopted. § 693. A distinctive feature of the law, common to all the States, is the provision for an official ballot printed and distributed by the State or municipality, the use of all other ballots being prohibited. In most States provision is made for the number of ballots to be printed,^ the time when they shall be in the hands of the election officers,^ the manner of sota: Law adopted in 1893 (ch. 4, Gen. Laws of 1893); amended in 1895. Mississippi: Law adopted November 1, 1890; took effect January 1, 1891. Missouri: Law adopted in 1889 (Rev. Stat., ch. 60, art. 3); amended by Session Acts of 1891, p. 136. Montana: Law in force June 1, 1889; amended March 19, 1895. Nebraska: Law approved March 4,1891. Ne- vada: Law approved March 13, 1891. New Hampshire: Law adopted in 1891 (ch. 49, Laws of 1891). New Jersey: Law approved April 18, 1896; in force July 4, 1896. New York: Law adopted in 1890 (ch. 262, Laws of 1890); amended May 27, 1896 (ch. 909, Laws of 1896). North Dakota: Law adopted in 1895 (ch. 8, Rev. Codes, 1895). Ohio: Law adopted in 1891. Pennsylvania: Law approved June 10, 1893. Rhode Island: Stat- utes of Rhode Island, ch. 11. South Dakota: Law approved in 1891. Tennessee: Law approved May 13, 1890 (ch. 24, Acts of 1890); applies to counties having seventy thousand inhabitants and over, and to cities having nine thousand inhabitants and over. Texas: Law in modified form adopted in 1891 (applies to cities having ten thousand inhabitants or more). Utah: Law adopted in 1896; in force on the 5th day of June, 1896. Vermont: Law adopted by Acts of 1890, No. 9; amended by Acts of 1892, No. 1; Gen. Laws of 1895, title 3. Virginia: Law approved March 4, 1896. Washington: Law adopted in 1891. West Virginia: Law passed in 1891 (Acts of 1891, ch. 89). Wisconsin: Law adopted in 1889; amended by ch. 288, Laws of 1893; revised in 1896. Wyoming: Law first authorized by the Territorial Legislature in 1890. Since then there have been several amendments. 1 Statutes of Kentucky, ch. 41, sec. 1461; Virginia, Ballot Act of March 4, 1896, sec. 6; Minnesota, Gen. Laws of 1893, ch. 4, sec. 23; Stat- utes of New Hampshire, ch. 33, sec. 12; New Jersey, Ballot Reform Law of 1896, sec. 33; Missouri, Laws of 1893, p. 153; Maine, Laws of 1893, ch. 267, sec. 12; Montana, Political Code, sec. 1355; New York, Elec- tion Law of 1896, art 4, sec. 86; Wisconsin, Election Law of 1896, sec. 45. 2 Colorado, Ballot Act of 1891, sec. 17; Maryland, Laws of 1896, ch. 202, sec. 49; Vermont, General Laws, title 3, sec. 96; Iowa, sec. 15, ch. 33, Laws of 1893. CHAP. XXII.] AUSTKAUAN BALLOT SYSTEM. 603 their distribution,^ and the manner of supplying ballots where the original supply has been lost or stolen.^ § 694. In Kentucky, Ohio, Pennsylvania, Tennessee and other States the ballots are bound in book form, with stubs and perforated lines for convenience in detaching ; the voter's name, residence and registered number being entered upon the stub.^ In Virginia the printer is required to take an oath that he will print no more than the number of ballots required by the electoral board; that he will destroy all ballots printed and not delivered to the board ; will, as soon as the ballots are printed, distribute the type used for the work, and will communicate to no one whomsoever the size, style or contents of the ballots. It is further made the duty of the electoral board to have one of their number present in the room while the ballots are being printed, to see that the undertakings of the oath are strictly complied with.* In Kentucky, Michigan, Indiana, Minnesota and "West Virginia it is made a felony for the printer to deliver any of the ballots to any person other than the proper offi- cer, or to knowingly print the ballot in any other than the prescribed form, or with any other names thereon, or with the names spelled or arranged in any other way than as di- rected by said officer. In Ohio the printer is required to give bond conditioned 1 Laws of Iowa of 1892, ch. 33, sec. 15; Ohio Ballot Law, sec. 15; North Dakota, Revised Code, sec. 493; Colorado, Ballot Act of 1891, sec. 21; Michigan, Public Acts of 1895, sec. 19; Pennsylvania, Ballot Law of 1893, sec. 17; Louisiana, Laws of 1896, art. 137, sec. 70; Massachusetts, Acts of 1893, ch. 417, sec. 141; Maine, Laws of 1893, ch. 267, sec. 18; New York, Election Laws of 1896, art. 4, sec. 87; Wisconsin, Election Laws of 1896, sec. 47. 2 Louisiana, Laws of 1896, act 137, sec. 72; Mississippi, Election Or- dinance of 1890, sec. 8; Maine, Laws of 1893, ch. 267, sec. 19; New York, Election Laws of 1896, art. 4, sec. 89. 3 Statutes of Kentucky, ch. 41, sec. 1461 ; Statutes of California, sec. 1198; Statutes of Tennessee, ch. 24, sec. 6; Pennsylvania Ballot Act of 1893, sec. 15; Ohio Ballot Law, sec. 18. < Act of March 4, 1896, sec. 7. 504: ELECTIONS. [CHAP. XXH. for the faithful performance, pursuant to contract, of such printing as may be awarded to him.^ In some instances provision is made for the filing of a proof copy of the ballot in the proper ofiBce for the inspec- tion of candidates, or chairmen of committees furnishing names of candidates, in order that errors may be corrected.^ § 695. The size and style of the ballot and the color of the paper and ink used are almost universally prescribed, uniformity of size, quality and type being required. As a general rule the names of all the candidates of all parties are printed upon each ballot, although in Il^ew Jersey sepa- rate tickets are provided for the nominees of the different political parties.' The arrangement of the names of candidates is different in different States, the more common method being to print each party ticket in a separate column, with one column for individual nominations. In some cases the columns are ar- ranged arbitrarily by statute, in others alphabetically, accord- ing to the first letter of the party name, in others precedence is given to the party which polled the largest number of votes at the last preceding general election. At the head of each column is placed the name of the political party whose nominations are contained therein. In many of the States the political parties are required to choose a party emblem or symbol, and this is printed at the head of the party ticket with the party name.* In Massachusetts' and New Harasphire* the names of candidates are arranged under the designation of the office in alphabetical order according to the surnames ; to the name 1 Ballot Law, sec. 15a. 2 Michigan, Act 271, Public Acts of 1895, sea 11. » Ballot Reform Laws of 1896, sec. 32. < There is nothing in the law preventing two ©r more political par- ties, whether acting through conventions or by petition, from selecting the same individuals for one or more of the offices to be filled. Simp- ton V. Osborn, 52 Kan., 328. » Acts of 1893, ch. 417, sec. 130. •Statutes of New Hampshire, ch. 33, sec. 11. CHAP. XXII.] AUSTKALIAN BALLOT SYSTEM. 505 of each candidate being added the name of the party, or designation of the principle represented by him, together with his address. This general arrangement of names of candidates has also been adopted in Louisiana, Colorado, Minnesota, Ehode Island, Alabama, Florida, Tennessee, Mon- tana, California and Nevada. The pasting of names upon a ticket by a voter is generally, though not in all cases, for- bidden. On the back and outside of the ballot is printed the words " Official Ballot," followed by the designation of the polling place for which the ballot is prepared, and usu- ally 2^ fac-sirrhile of the signature of the officer under whose direction the ballot was printed. § 696. Under the law of Nebraska directing the names of candidates to be arranged on the ballot in alphabetical order according to surnames, it was held in State v. Allen ^ that the name of each candidate should be printed but once upon the ballot, accompanied by such political or other des- ignations as represent the different parties or persons nomi- nating him. But in those States where the tickets of the different political parties are printed in separate columns, with a separate column for independent nominations, the name of a candidate nominated for the same office by more than one party should appear on the official ballot under the name or emblem of each party or body of voters nomi- nating him.2 An exception to this rule is found in Michigan, where the statute ' prohibits the printing on the official bal- lot of the name of a candidate receiving the nomination of two or more parties in more than one column.* This stat- ute has been declared by the Supreme Court of that State as a valid exercise of the power of the Legislature to pass 143 Neb., 651; 62 N. W. Rep., 35. 2 Fisher v. Dudley, 74 Md., 243; 23 AtL Rep., 3; Simpson r. Osborn, 52 Kan., 328; 34 Pac Rep., 747. 8 Act of March 14, 1895. ^ The Indiana statute contains a similar proyision. (Gen. Laws, ch. 87, sec 19.) 606 ELECTIONS. [chap. XXII. laws to preserve the purity of elections, and not unconstitu- tional because subversive of the right to vote,^ § 697. The nomination of candidates for office under the Australian system may be made either by conventions or primary elections held by political parties polling a certain per cent, of the entire vote cast at the last preceding gen- eral election, or by nomination papers signed by a fixed number of qualified voters. Such nominations must be cer- tified as required by law, and filed with the proper election officer.' Provision is made for publishing the names of the candi- dates nominated; for the public inspection of certificates of nomination and nomination papers; for the filing of objec- tions to and decision of questions affecting the regularity of nominations ; ' for the withdrawal of persons nominated, and for the filling of vacancies. § 698. The question has arisen as to what comprises the duty of the Secretary of State when certificates of nomina- tions are filed with him by rival factions of a political party, each claiming authority to represent the party. It has been decided in Michigan* and Colorado' that the Secretary has no authority to determine which of two factions is entitled iTodd V. Board of Election Commissioners, 104 Mich., 474; 64 N. W. Rep., 496. 2 A certificate purporting to state nominations made by a party con- vention without giving the business, residences or business addresses of the candidates, and signed by the chairman and secretary of the con- vention, without the addition of their residences and business ad- dresses, in disregard of the requirements of the statute, may be properly rejected by the Secretary of State. Lucas v. Ringsrud, 3 S. Dak., 355; 53 N. W. Rep., 426. 8 The ballot law of Missouri makes no provision for a tribunal to de- termine the regularity of nominations. The Supreme Court of that State has held that the State committee of a party, in accordance with party usage and precedent, has authority to order a new primary elec- tion for the purpose of settling a dispute between the nominees of rival factions of the party. State v. Lesueur, 103 Mo., 253; 15 S, W. Rep., 539. * Shields v. Jacob, 88 Mich., 164; 56 N. W. Rep., 105. • People V. District Court, 18 Colo., 26; 31 Pac. Rep., 339. CHAP. XXII.] AUSTRALIAN BALLOT SYSTEM. 507 to represent tho party for which it assumes to act, and where two sets of nominations are made by rival conven- tions it is the duty of the Secretary to certify both sets, if apparently conformable to law; this upon the theory that in case of doubt the course should be followed which will afford the citizen the greatest liberty in casting his ballot. A somewhat different view has been entertained by the courts of Missouri^ and N'ebraska,^ which hold that though the duties of the Secretary of State in such a case are min- isterial, still he is not a "mere figurehead or automaton, moved about at the whim or touch of every eager applicant ; " that he is vested with sufficient discretionary powers to au- thorize him to consider before acting, and to search and inquire before reaching a conclusion ; that in case of objec- tion he should ascertain from the record or from extrinsic evidence whether such candidates were in fact placed in nomination by a convention or assemblage claiming to rep- resent a political party.' § 699. The courts have been called on to determine whether the limitation of the right to have ballots printed at public ex- pense by restricting it to parties polling a certain per cent, of the vote cast at the last general election, or to a certain num- ber of qualified voters signing a nomination paper, is in viola- tion of the constitutional provision that elections shall be free and equal, and that all laws regulating them shall be uni- form throughout the State. The Supreme Courts of Penn- sylvania and New Jersey have upheld this provision as a 1 State V. Lesueur, 103 Mo., 253; 15 S. W. Eep., 539. « State V. Allen, 43 Neb., 651; 62 N. W. Rep., 35. 8 Where candidates are nominated by petition, the Secretary of State has no right to file the petition unless properly signed and acknowledged by the requisite number of electors. State v. Lesueur (Mo.), 38 S. W. Rep., 325. See, also, People v. Police Commissioners, 10 Misc. Rep., 200; 31 N. Y. Sup., 467; People v. Police Commissioners, 31 N. Y. Sup., 469. In New York the Secretary of State is authorized by statute to deter- mine the conflicting claims of rival factions of a party. Laws of 1896, ch. 909, sec. 56. 508 ELECTIONS. [chap. XXII. reasonable regulation of the elective franchise. The former court, in De Walt v. Bartley^ say : " The act does not deny to any voter the exercise of the elective franchise because he happens to be a member of a party which at the last general election polled less than three per cent, of the entire vote cast. The provision re- ferred to is but a regulation, and we think a reasonable one, in regard to the printing of tickets. The use of official bal- lots renders it absolutely necessary to make some regulations in regard to nominations in order to ascertain what names shall be printed on the ballot. The right to vote can only be exercised by the individual voter. The right to nom- inate, flowing necessarily from the right to vote, can only be exercised by a number of voters acting together." In State v. Blach^ the Supreme Court of ]^ew Jersey holds that such a restriction in no way impedes the voter in the exercise of his right to vote for any particular person ; it only embarrasses him in his right to form a party and vote as a member of that party.' § too. The statutes of most of the States expressly per- mit the voter to cast his ballot for the person of his choice for office, whether the name of the person he desires to vote for appears upon the printed ballot or not. Statutes which deny the voter this privilege are in conflict with the con- stitutional provision guaranteeing the right of suffrage to every citizen possessing the requisite qualifications and are void. Legislatures may provide for the printing of an offi- 1 146 Pa. St., 529; 24 AtL Rep., 185. See, also, Slaymaker «. Philips (Wyo.), 40 Pac. Rep., 971. 2 54 N. J. L., 446; 24 Atl. Rep., 489. 3 It has been held in Missouri that the provisions of the Australian ballot system as a whole are not in violation of the constitutional pro- vision that all elections shall be free and open. State v. McMillan, 108 Mo., 153; 18 S. W. Rep., 784. A candidate for office cannot compel elec- tion officers to cause his name to be printed upon the official ballot where h» has not been nominated in the manner provided by the stat- ute. Miner v. Olin, 159 Mass., 487; 34 N. E. Rep., 721. The law declared constitutional in Common Council v. Rush, 82 Mich., 533; 46 N. W. Rep., 95L CHAP. XXII.] AUSTKALIAN BALLOT SYSTEM. 509 cial ballot and prohibit the use of any other, but they can- not restrict the elector in his choice of candidates, nor pro- hibit him from voting for any other than those whose names appear on the oflBcial ballot.^ § 701. It has been held by the Supreme Court of Mon- tana in the case of State v. Benton^ that a political conven- tion may delegate to a committee power to fill all vacancies upon the party ticket ; that the exercise of this delegated power by the committee after the adjournment of the con- vention should be regarded as the act of the convention, and that the names of persons so nominated are properly upon the official ticket. It was further held in the same case that a certificate of nomination, regular upon its face, and filed with the proper officer, is jprima fade evidence of the nom- ination of the person so certified. § Y02. A candidate nominated by electors is not the nominee of a political party, but of the individual electors nominating him, even though all of the electors signing the nominating paper be members of the same political party. Such electors cannot, by choosing the name of a political party authorized to make nominations by convention, make such nominee the nominee of such party. Such a nominee, however, has the right to appear upon the official ticket as the representative of the political principle named by the electors nominating him, and such principle should be printed in type as bold and significant as that used in print- ing party names in the headings over party nominations.' § 703. The statute of Massachusetts provides that "every voter signing a nomination paper shall sign the same in per- 1 State V. Dillon, 32 Fla., 545; 14 S. Rep., 383; Sanner v. Patton, 155 III, 553; 40 N. E. Rep., 290; Bowers u Smith, 111 Mo., 45; 17 S. W. Rep., 761; Eaton v. Brown, 96 Cal., 371; 31 Pac. Rep., 250; People v. Shaw, 133 N. Y., 493; 31 N. E. Rep., 512; People v. President, 144 N. Y., 616; 39 N. E. Rep., 641. 2 13 Mont, 306; 34 Pac. Rep., 801. 3 Atkinson u Lay, 115 Ma, 538; 23 S. W. Rep., 481. See, also. In re Madden, 148 N. Y., 136; 42 N. E. Rep., 534; Fernbacher v. Roosevelt, 90 Hun, 441; 35 N. Y. Sup., 898. 510 ELECTIONS. [chap. XXH. son, and shall add to his signature his place of residence, with the street and number thereof, if any." This provision has been construed by the Supreme Court of that State, in a criminal prosecution for falsely making a nomination paper, to mean that a voter must either with his own hand write his name and address, or the signing must be done at his request and in his presence, previous authority or subsequent ratification not being sufficient.^ § 704. The language of the Minnesota statute (Sec. 34, Ch. 4, Gen. Laws of 1893), providing for nominations by "an assembly or convention of delegates representing a political party," has been construed as not prohibiting polit- ical parties from holding mass conventions for the nomina- tion of candidates for office. The Court here, in attempting to carry out the supposed intention of the Legislature, gave to the word " delegate " the popular, but inaccurate, defini- tion, " a regularlj' selected member of a regular party conven- tion." « § 705. There is some confl.ict among the authorities as to whether the provisions of the statute concerning certificates of nomination are to be regarded as mandatory or directory merely. The first decision affecting this question was by the Supreme Court of Montana in Price v. Lush? The Court in this case applied the rule that where a State adopts the statute of another State or country, the construction of the statute by the courts of the latter is to be received in the new jurisdiction with all the weight of authority. The Montana court therefore adopted what it believed to be the view of the English courts, and held that these provisions are mandatory, and that the requirements of the law for the nomination of candidates for office must be complied with in every particular. A radicall}"^ different view has been adopted by the Su- preme Court of Missouri. In Bowers v. Smith * it was charged 1 Commonwealth v. Connelly, 163 Mass., 539; 40 N. K Rep., 8631 2 Mansion v. Mcintosh, 58 Minn., 525; 60 N. W. Rep., 673. »10 Mont., 61; 24 Pac. Rep., 749. < 111 Mo., 45; 20 S. W. Rep., 101. CHAP. XXII.] AUSTKALTAN BALLOT SYSTEM. 511 that the official ballots used at a municipal election contained the names of the nominees of a political party which had not polled at the last previous general election the per cent, of the entire vote required by statute; also that the list of names of candidates was not legally certified to the County Court. The Court refused to repudiate the votes cast for these candidates, holding that the strict rule adopted by the Montana court was antagonistic to the fundamental law of Missouri, and that prior decisions elsewhere could not prop- erly be followed if inconsistent with such law. The Court, in referring to election laws generally, says : " Strictly speaking, all provisions of such laws are manda- tory, in the sense that they impose the duty of obedience on those who come within their purview. But it does not therefore follow that every slight departure therefrom should taint the whole proceedings with a fatal blemish. Courts justly consider the chief purpose of such laws, namely, the obtaining of a fair election and an honest return, as par- amount in importance to the minor requirements which pre- scribe the formal steps to reach that end, and, in order not to defeat the main design, are frequently led to ignore such innocent irregularities of election officers as are free from fraud and have not interfered with a full and fair expression of the voter's choice." ^ A similar view has been expressed in N'ew York in a case where there was a failure at a town election to file certifi- cates of nomination, and a neglect to prepare official ballots, the ballots used containing the names of all the candidates and being treated as official by the voters.^ The weight of 1 The same court has, however, indicsated that the provisions of the Missouri statute requiring a certificate of nomination to be acknowl- edged in the same manner as a conveyance of real estate must be com- plied with. State v. Lesueur, 103 Mo., 253; 15 S. W. Rep., 539. 2Montgomery v. O'Dell, 67 Hun, 169: 142 N. Y., 665. But in another case in New York it had been held that the provision with respect to the time when the certificates of nomination must be filed is mandatory, and after the time has passed a county clerk has no right to receive and file nominations. Matter of Cuddeback, 3 App. Div., 103; 39 N. Y. Sup., 388. 512 ELECTIONS. [chap. IXH. authority is against a construction making tt ose provisions " so mandatory ttiat a mere formal defect incapable of af- fecting the regular and orderly conducting of an election or its result should invalidate an election," ^ An examina- tion of these decisions will show, however, that they are in- fluenced to some extent by the failure of the opposing parties or candidates to make timely objections to names not prop- erly upon the ballot.^ § 706. A liberal rule of construction has been adopted very generally with reference to other portions of the law pertaining to nominations and to the form and contents of the ballots. Thus, it has been held that a violation of the provision that the name of each candidate shall be printed upon the ballot in but one place will not vitiate the vote.* Kor will a voter be deprived of the right to have his vote counted because the ballot fails to properly state the polit- ical affiliation of the candidate;* nor because the names of all independent candidates are not printed in one column as required by the statute ; ' nor on account of a failure to pub- lish the names of candidates in exact conformity with the law ; * nor because the names of certain candidates are printed under the wrong party device ; ^ nor because the officer of election has written the name of a candidate upon a ticket in correction of an error in printing;^ nor because an op- portunity has not been afforded the voters to inspect the ballots.® 1 State V. Barber (Wyom.), 32 Pac. Rep., li, 26, 28; Simpson v. Osborn, 52 Kan., 328. 2 See, also, Allen v. Glynn, 17 Colo., 388; 29 Pac Rep., 670. 8 Miller v. Pennoyer, 23 Oreg., 364; 31 Pac. Rep., 830. < State V. Norris, 37 Neb., 299; 55 N. W. Rep., 1086. 6 Murphy v. Battle, 155 111., 182; 40 N. R Rep., 470. « Atkinson v. Lay, 115 Mo., 538; 22 S. W. Rep., 670; People n Avery, 102 Mich., 572; 61 N. W. Rep., 4; Allen v. Glynn, 17 Colo., 538; 29 Pac. Rep., 670. ' Allen V. Glynn, 17 Colo., 538; 29 Pac. Rep., 670. And see Talcott v. Philbrick, 59 Conn., 478; 20 Atl. Rep., 436. estate v. Van Camp, 36 Neb., 9; 54 N. W. Rep., 113. 9 Lindstrom v. Board of Canvassers, 94 Mich., 467; 54 N. W. Rep., 280. CHAP. XXII.] AUSTRALIAN BALLOT SYSTEM. 513 These decisions proceed upon the principle that, in the ab- sence of fraud, the voter who has had nothing to do with the preparation of the ballot, nor with matters preliminary to the election, should not be deprived of the right to have his vote counted because of the errors or wrongful acts of elec- tion officers.^ § 707. The general rule that a paper is to be considered as filed when it is deposited in the proper office, and that the indorsement upon the paper by the official is not an es- sential part of the act of filing, has been very properly applied to the filing of certificates of nomination. The or- dinary rules with reference to the proof of contents of lost instruments should, of course, apply to lost certificates, al- though the statute usually makes provision, in such a case, for supplying valid nominations.^ § 708. "Where the Secretary of State refuses or neglects to certify to the proper county officers the name of a candi- date nominated by petition, the petitioners nominating such candidate have such a special and peculiar interest in having his name appear upon the official ballot as to entitle them to maintain an action to require the Secretary of State to certify the fact of the candidate's nomination, and they may proceed by mandamus for that purpose.' But the act of the Secretary of State in wrongfully certi- fying the names of certain persons as the candidates of a particular party will not destroy the efficacy of ballots cast for other candidates for other offices upon the same ticket 1 It has been held in England under the Australian ballot law, as there adopted, that where a candidate had been nominated twice by petition, one nomination being good and the other bad, and his name had been twice printed upon the ballot — once for each nomination, and he had received votes under each, — that the bad nomination did not avoid the good one, and that all votes cast for him under each nomina- tion should be counted for him. Northcote v. Pulsford, L. R., 10 C. P., 476, 48a 2Rathbum v. Hamilton, 53 Kan., 470; 37 Pac Rep., 2a ^ Rathburn v. Hamilton, supra. 514 ELECTIONS. [chap. XIH. who were legally nominated and whose names were legally certified.* § 709. In construing the provision of the law requiring certificates for filling vacancies to state for whom the per- son nominated is to be substituted, and the cause of the va- cancy, it has been held in South Dakota that a certificate which fails to contain this information should be rejected by the Secretary of State.'^ § 710. For the instruction of the voter the law directs the printing and distribution by election officers of sample bal- lots, printed upon paper of a different color from that used for the official baUot, and containing the names of the can- didates to be voted for, substantially in the form of the offi- cial ballot. Provision is also made for the publication in newspapers of a list of all nominations to be voted for, and for the posting and printing of full instructions for the guidance of the voter in all matters pertaining to the depos- iting of his ballot. § 711. The statute of Kansas contains the usual provision that the ballots shaU be printed on white paper. In Boyd V. Mills ' it appeared that the election officers of one town- ship used the sample ballots printed on colored paper in con- ducting the election, and returned all the official ballots which were printed on white paper. All the ballots used were of the same color. The conclusion of the court was that the secrecy of the ballot had been in no wise impaired ; and as the use of the colored ballots was an honest mistake on the part of the election officers, these ballots should be counted. § 712. The law provides for the appointment of judges and clerks of election, and defines their qualifications and I Smith t>. Harris, 18 Colo., 274; 32 Pac. Rep., 616. The fact that a con- stitutional amendment was npt printed in proper form upon the ballot does not give a defeated candidate ground for complaint, as it has no bearing upon his rights. Atkinson v. Lay, 115 Mo., 538; 22 S. W. Rep., 48L » Lucas t). Ringsrud. 3 a Dak, 355; 53 N. W. Rep., 428w «53 Kan., 594; 37 Pao. Rep., 16. CHAl'. XXTI.] AUSTRALIAN BALLOT SYSTKM. 515 duties. It is customary to provide that the different polit- ical parties shall be represented, and that the election offi- cers shall not be- candidates to be voted for at the election, and shall be able to read and write the English language. In the absence of fraud, however, the fact that the officers of election were not possessed of the prescribed qualifica- tions will not avoid the election. In such cases the well- established doctrine of the validity of the acts of de facto officers should be applied.^ The different political parties are permitted to select chal- lengers and watchers to be present at the polls and to wit- ness the count. It has been held in Minnesota that a compliance with a provision of this character is not vital to the legality of the election where no fraud is alleged and where it is not claimed that the result of the election has been changed by the omission or disregard of the require- ment.2 § T13. One of the chief objects sought to be accomplished by the Australian system is to preserve the secrecy of the ballot. For this purpose the polling places are provided with compartments or booths, each of sufficient size to ac- commodate one voter at a time, and so constructed that the voter is screened from observation while preparing his bal- lot. These compartments, as well as the ballot-boxes, are usually protected by a guard-rail, within which no person is permitted other than election officers, challengers, persons admitted for the purpose of voting, and peace officers ad- mitted by the officers of election to keep order and enforce the law. I^either the voting booths nor the ballot-boxes are permitted to be hidden from the view of those outside the guard-rail. A sufficient number of booths are provided to avoid crowding and inconvenience, and only as many iSec. 247 et seq.; Opinions of Justices, 70 Me., 565; People v. Avery, 102 Mich., 572; 61 N. W. Rep., 4; Trustees v. Garvey, 80 Ky., 159. As to effect of failure of inspectors to be sworn, see sec. 525. As to irreg- ularities in opening and closing polls, see sees. 162-165. 2 Soper V. Board of Commissioners of Sibley Co., 46 Minn., 274; 48 N. W. Rep., 1113. 516 ELECTIONS. [chap. XXH. voters are admitted within the rail at one time as there are booths. The presence of persons other than those author- ized by law in the vicinity of the polling place is forbidden. § T14. The act of voting is accomplished as follows : The elector receives from the judges or inspectors of election one oflBoial ballot, upon which the names or initials of certain of the election officers have first been written. The voter forth- with, and without leaving the voting place, retires alone to one of the voting compartments, and there prepares his bal- lot. The preparation of the ballot is accomplished differ- ently in different States. In most cases the voter indicates his choice of tickets or candidates by making a cross (x) at the head of the ticket for which, or opposite the name of the candidate for whom, he desires to vote, or by writing in the name of the candidate of his choice in a blank space pre- pared for that purpose. He indicates in a similar manner his answer to questions submitted to the voters. In some States the voter is required to use an official stamp instead of a cross made with ink. In Missouri the voter is directed to cross out all the groups except one, by drawing a line or lines lengthwise through the rejected columns, and then make all changes on the remaining column by striking out such names as he does not wish to vote and writing the names of his choice underneath. The law prescribes that the voter shall fold his ballot in such a manner as not to dis- close its contents, but so that the initials of the officers can be seen. In some cases the ballot is folded by the officers of election before it is delivered to the voter. In New Jer- sey the ballot is inclosed in an envelope and so deposited unsealed in the ballot-box.^ No elector is allowed to occupy a voting compartment already occupied by another. If the voter spoils a ballot through accident or mistake, he ma}'^ surrender it to the officers and receive another. The length of time which he may remain in the booth is fixed by stat- ute.'^ In some States he is not permitted to converse with 1 Ballot Reform Laws, 1896, sec. 226. 3 A limitation of two and one-half minutes held not so iinreasonable CHAP. XXII.] AUSTRALIAN BALLOT SYSTEM. 517 any one except the election officers while inside the inclos- ure. He is forbidden to disclose the contents of his ballot before depositing it. At some time during the process of voting the name and address of the voter is announced in a loud and distinct voice by an election officer. The name of the voter is checked upon the poll-list by the officer having the same in charge immediately after the ballot is placed in the box. As soon as the voter has deposited his ballot, he is required to quit the inclosed space and is not permitted to return. § 715. The provision of the statute requiring the voter to retire alone to the voting compartment and there pre- pare his ballot was considered by the Supreme Court of Missouri in Hall v. Schoenecke^ where six voters, five of whom were judges or clerks of election, prepared their bal- lots without going into the booths. It was held in this case that this section was only intended to give directions for the guidance of the voter, and that a failure to comply strictly therewith would not invalidate the vote if the spirit of the law had not been violated. § 716. "Where the statute requires that two judges " of opposite political parties" shall place their initials upon the backs of all the ballots before they are used by the voters, and provides further that no ballot which has not the in- itials of two judges of election, in said judges' handwriting, on the back thereof, shall be placed in the box, ballots bearing the initials of two judges belonging to the same political party should not be rejected where the irregularity is the result of ignorance of the requirement, and where no fraud has been attempted or accomplished. The Supreme Court of Minnesota, in reaching this conclusion, assigns as a reason that to hold this provision mandatory would enable an election judge, by misrepresenting his politics, to dis- franchise an entire election precinct, and that the refusal of as to render the law void. Pearson v. Board of Supervisors of Bruns- wick Co., 91 Va., 323; 21 S. E. Rep., 48a 1 128 Mo., 881; 31 S. W. Rep., 97. 518 ELECTIONS. [chap. XXII. all members of the minority party to serve as judges would make it possible for that party to prevent the casting of a single legal vote.^ The same conclusion has been reached by the Supreme Court of Indiana in a case where the initials of the clerks of the election were indorsed on the ballots in a place different from that required by the statute, the Court expressing the opinion that the purpose of the law was as well accomplished as if it had been obeyed literally.^ § 717. The statute of Nevada provides that any ballot not bearing the initials of an inspector or judge of election shall not be counted. The Supreme Court of that State has decided that this part of the statute is in conflict with the provision of the State Constitution that all persons pos- sessing the requisite qualifications shall be entitled to vote at all elections, and cannot be enforced to disfranchise the voter. It is held in the same case that the failure of the election officers to provide election booths in compliance with the law is but an irregularity, which will not avoid the election.^ § 718. In case of physical disability or inability to read or write on the part of the voter, the law requires the offi- cers of election to render him such assistance as may be necessary in preparing his ballot, and in some States bal- lots may be received at the door from persons physically disabled from entering the room.* Such provisions are con- stitutional and not subject to the objection that they de- prive the voter of the right to cast a secret ballot.* § 719. Under the statutes of some of the States the as- sistance rendered a disabled voter must be given privately 1 State V. Gay, 59 Minn., 6; 60 N. W. Rep., 676. 2 Parvin v. Wimberg, 130 Ind., 561 ; 80 N. E. Rep., 790. See, also. Slay- maker V. Philips (Wyo.), 40 Pac. Rep., 971. 3 Moyer v. Van De Vanter, 41 Pac. Rep., 60. < In Nevada a disabled voter may call on any elector to aid him. Act of March 13, 1891, sec. 23. Intoxication is not a physical disability under the Illinois law. Ballot Law, 1891, sec. 24. 8 Pearson v. Board of Supervisors of Brunswick Co., 91 Va., 322; 21 S. R Rep., 483; Ellis v. May, 99 Mich., 538; 58 N. W. Rep.. 483 CHAP. XXII.] AUSTRALIAN BALLOT SYSTEM. 519 in a voting compartment. In the absence of such a clause the Minnesota court has held that the ballot of such a voter will not be excluded because made up openly in the pres- ence and hearing of the election officers and other electors.* But it was held in that case that the law requiring the ad- ministering of an oath to such voters as claim the right to have their ballots marked by another person is mandatory and must be strictly observed. The same provision in the statute of Indiana has been construed to be directory only, the Court holding that the right of a voter to assistance de- pends not on his declaration, but on the fact of his disa- bility .^ The provisions of the statutes of Michigan and California with reference to assisting disabled voters in mark- ing their ballots have been held by the courts of those States to be mandatory.' § 720. The provisions of the law defining the manner in which the volar shall mark his ballot are generally held to be mandatory. To permit the ballot to be marked in a dif- ferent manner from that prescribed would be to enable the voter to place a distinguishing mark upon his ballot, thereby depriving it of its secrecy, and frustrating the chief object sought to be obtained by the system.* 1 State V. Gay, 59 Minn., 6; 60 N. W. Rep., 676. Under the Missouri law the election judges are not permitted to enter the voting compart- ment to assist an elector to prepare his ballot, but must prepare the ballot at the voter's dictation without leaving their respective positions. Session Laws, 1883, p. 164. 2 Montgomery v. Oldham, 143 Ind., 137; 43 N. E. Rep., 474. 8 Ellis V. May, 99 Mich., 538; 58 N. W. Rep., 483; Tebbe v. Smith, 108 Cal., 101; 41 Pac. Rep., 454. < Tebbe u Smith, 108 Cal., 101; 41 Pac. Rep., 454; Taylor v. Bleakley, 55 Kan., 1 ; 39 Pac. Rep., 1045, and note to same case in 49 Am. St. Rep., 240; Richardson v. Jamison, 55 Kan., 16; 39 Pac. Rep., 1050; Whiftan v. Zahorek, 91 Iowa, 93; 59 N. W. Rep., 57; State v. Hogan, 91 Iowa, 510; 60 N. W. Rep., 108; Parvin u Wimberg, 130 Ind., 561; 30 N. E. Rep., 790; Curran v. Clayton, 86 Me., 43; 29 Atl. Rep., 930; In re Vote Marks, 17 R L, 812; 21 Atl. Rep., 962; Ellis v. Glaser, 103 Mich., 405; 61 N. E. Rep., 648; Sego V. Stoddard (Ind.), 36 N. E. Rep., 204; Kirk v. Rhodes, 46 Cal., 398; Bechtel v. Albin, 134 Ind., 193; 33 N. E. Rep., 967; Lay v. Parsons, 104 520 ELECTIONS. [chap. XXIL. Most of the decisions holding that this rule should be re- laxed sufficiently to determine the intention of an innocent voter are based upon statutes containing peculiar or in- definite provisions. Thus, under the section of the Nebraska statute that " when a ballot is sufiiciently plain to gather therefrom a part of the voter's intention, it shall be the duty of the judges of election to count such part," it has been held that a ballot which the statute requires should be marked with ink should not be rejected because marked with a lead pencil.^ Likewise under the statute of Minne- sota, which does not prescribe any inflexible rule as to what shall, or shall not, be accepted as a cross-mark, it has been held that "any mark, however crude and imperfect in form, if it is apparent that it was honestly intended as a cross- mark, and for nothing else, must be given effect as such."^ It may be concluded that while there is some authority to the contrary,' the great weight of authority in this country is in favor of holding such provisions mandatory. § 721. In most States the use of any mark upon a ballot by means of which it may afterwards be identified or distin- guished will render the ballot void.* It has been held in Mich- igan and Nevada that this provision applies only to marks made upon the ballot by the voter, and not to marks made by CaL, 661; 38 Pac. Rep., 447; Vallier v. Brakke (S. Dak.), 64 N. W. Rep., 180 and 1119; McKittrick v. Pardee (S. Dak.), 65 N. W. Rep., 23; In re Contested Election of School Directors of Little Beaver Township, 165 Pa. St., 233; 30 Atl. Rep., 955; State v. McEIroy, '14 La. Ann., 796; People V. Sausalito, 106 CaL, 500; Parker v. Orr, 158 111., 609. •State V. Russell, 34 Neb., 116; 51 N. W. Rep., 465; Spurgin v, Thomp- son, 37 Neb., 39; 55 N. W. Rep., 297. 2 Pennington v. Hare, 60 Minn., 146; 62 N. W. Rep., 116. 'Houston V. Steele (Ky.), 34 S. W. Rep., 6; Johnson v. Board of Can- vassers (Mich.), 59 N. W. Rep., 412; Coleman v. Gernet, 14 Pa. Ca Ct R., 578. * Tebbe v. Smith, 108 CaL, 101; 41 Pao. Rep., 454. The Supreme Court of Texas has held that the writing of the voter's name upon the back of his ticket will not avoid it. Hanscom v. State (Tex.), 31 S. W. Rep., 547. The Texas law is, however, a modification of the system as adopted in the other States and is less rigid in its regulationa CHAP. XXn.] AUSTEALIAN" BALLOT SYSTEM. 521 election officers through mistake.^ But in N'ew York ballots having the name of one polling district printed upon the backs thereof, and sent to and used at another district through the accident or design of the county clerk, were rejected in People V. Board of County Canvassers^ on the ground that the indorsement thereon was not as prescribed by law, and was a distinguishing mark within the meaning of the stat- ute. This case arose, however, under the New York ballot law of 1890, under which separate tickets were prepared for each political party, and the error in question occurred only in respect to the ballots prepared for one party, so that these ballots became thereby distinguishable from all others. This decision was by a divided court, Judges Peckham and An- drews filing dissenting opinions. Under the present law of New York, providing for one ballot for all parties, a differ- ent conclusion has been reached. In the recent case of Peo- ple V. Woods^ it is held that a ballot furnished by the State is not a marked ballot because of any irregularity in making it up or printing it. In this case a public official, charged with the duty of making up and printing the ballots, in- serted the names of candidates in a party column, not duly nominated by such party. This was held not to invalidate such ballots cast by innocent voters, though done in viola- tion of law. The fraudulent placing of distinguishing marks upon bal- lots after they have been deposited in the baUot-box will not render them illegal.* § 722. The statute of Nevada provides " that any names, words or marks, except as in the act provided, shaU invali- date the ballot." It has, however, been held under this sec- tion that a mark inadvertently or accidentally made, not for iLindstrom v. Board of Canvassers, 94 Mich., 467; 64 N. W. Rep., 380: Buckner v. Lynip (Nev.), 41 Pac. Rep., 762. 2129 N. Y., 395; 29 N. E. Rep., 327. » 148 N. Y., 142; 42 N. E. Rep., 536. < Attorney-General v. Howoroft (Mich.), 64 N. W. Rep., 654 522 ELECTIONS. [chap. XXH. an evil purpose, should not be construed as a distinguishing mark.i § 723. The statute of Missouri provides that no writing shall be placed upon the back of the ballot except the names or initials of two of the judges of election and the number of the ballot. It has been said by the Supreme Court of that State in a recent case ^ that this provision refers to the time when the ballot was delivered to the voter, and not to the time when it was voted ; and though the intention of the statute doubtless was to require that the ballot should have no other writing upon it when delivered by the voter to the judges, still this provision should not be regarded as mandatory, it not having been made so by the statute. The Court therefore held that a ballot on the back of which a voter had written his name was not void, where it did not appear that the ballot was so folded that the name could be seen, or that the name was written for the purpose of identi- fying the vote. The soundness of this decision may well be doubted, even though the statute of Missouri does not expressly provide for the rejection of ballots bearing distinguishing marks. A holding to the contrary would seem to be more in accord with the spirit of the law, and more likely to secure the secrecy of the ballot. The Courts of Nebraska and South Dakota hold that ballots on which voters have written their names cannot be counted.^ § 724. The decisions cited in the preceding sections upon the question whether the provisions of the law are manda- tory or directory are not entirely harmonious. They, how- ever, disclose a well-defined disposition on the part of the courts to distinguish between acts to be performed by the voters, and those devolving upon the public oificials charged with the conduct of the election. The w^eight of authority 1 Dennis v. Caughlin (Nev.), 41 Pac Rep., 76a 2Lank£ord v. Gebhart, 130 Mo., 631. »Spurgin v. Thompson, 37 Neb., 39; 55 N. W. Rep., 297; Vallier u Brakke (S. Dak.), 64 N. W. Rep., 180. CHAP. XXII.] AUSTRALIAN BALLOT SYSTEM. 623 IS clearly in favor of holding the voter, on the one hand, to a strict performance of those things which the law requires of him, and on the other of relieving him from the conse- quence of a failure on the part of election officers to perform their duties according to the letter of the statute where such failure has not prevented a fair election. The justice of this rule is apparent, and it may be said to be the underlying principle to be applied in determining this question. The requirements of the law upon the elector are in the interest of pure elections, and should be complied with at least in substance, but to disfranchise the voter because of the mis- takes or omissions of election officers would be to put him entirely at the mercy of political manipulators. The per- formance by the election officers of the duties imposed upon them can be reasonably well secured by providing a penalty for failure so to do. § 725, In the State of Kentucky all primary elections held in that State are conducted according to the Australian system.^ Forty days' public notice is required to be given of such elections, specifying the day when the election will take place, the hours between which it will be held, the offices for which candidates will be nominated, and the places at which the polls will be opened. All legal voters may participate in such primary elections, but, in order that none but those affiliating with or being members of a political party may participate in a primary election held by such party, provision is made for ascertaining the political affilia- tion of all voters at the regular State registration, and for recording the same upon the State registration books. The list thus made up is posted and may be copied by the gov- erning authority of any political party. Tampering with this list is made a criminal offense. The primary election inspectors are sworn in in the same manner as at general elections, and are subject to like penalties for offenses against the law. The names of candidates for office must be sub- mitted to the party committee fifteen days before the elec- 1 Art. 12, ch. 41, Kentucky Statutes. 524 ELECTIONS. [chap. XXIL tion, and persons complying with the conditions imposed by the committee must be declared candidates. The expense of printing ballots and notices, together with all other expense of the primaries, is borne by the political party holding the same, but the ballots must be printed under the same re- strictions provided by the general law of the State for the printing of ballots used at State elections. This valuable innovation is said to have given very satisfactory results since its introduction in the State in 1892.^ § T26. In Massachusetts a special ballot for the use of women qualified to vote for school committee is printed on tinted paper, different, however, from that used for specimen ballots.- In North Dakota, ballots cast by women on propo- sitions pertaining to school matters must be deposited in a separate ballot-box,' and in Minnesota a separate ballot-box is likewise provided for ballots cast by women,* § 727. Among the general provisions of the statute for the prevention of fraud in elections, and not already referred to, may be mentioned the furnishing of ballot-boxes by the State or municipality, the requirements for the surrender and cancellation of unused ballots, provisions forbidding the taking of official ballots from the voting place, closing saloons on election day and prohibiting electioneering in the vicinity of the polls,' supplemented by provisions for the criminal prosecution of persons guilty of wilful violations of the law. The division of cities into small voting precincts, though not strictly a feature of this system, is a reform which has been embodied in the law as introduced in some States, and is now almost universally applied in conducting municipal elec- tions in the United States.^ 1 See Article of John E. Milbolland, " The Danger Point in American Politics," North American Review for January, 1897, p. 92. 2 Acts of 1893, ch. 417, sec. 132. »Sec. 532, Rev. Code of North Dakota, 1895. *Sec. 77, ch. 4, Laws of 1893. * The provision of the law forbidding electioneering in the vicinity of the polls is constitutional State v. Black, 54 N. J. Law, 446; 24 AtL Rep., 489. 6 This chapter has been confined to a consideration of American de- CHAP. XXII.] AUSTRALIAN BALLOT SYSTEM. 625 § 728. Probably the chief objection to the Australian ballot law is that the counting of the oflScial ballots is of necessity a tedious and difficult process, and that informa- tion with reference to the result of an election is, on this account, unduly delayed. An interesting innovation has been introduced in Michigan and 'New York which promises to obviate this difficulty and to revolutionize the manner of conducting elections in this country. In 1893 the Legisla- ture of Michigan provided by statute that at all township. State and village elections held in that State the voting might be done with the "Khines Yote Eecorder."^ By an act of the Legislature of Kew York, approved May 24, 1894,^ it is provided that any city or town in the State outside of New York and Kings counties may adopt the "Myers Automatic Yoting Machine " for use at all elections. By an act approved April 21, 1896,' a similar provision was made permitting the use of the " Davis Yoting Machine." The use of other machines is also permitted in incorporated towns and villages.* In 1895 the New York statute providing for the use of the Myers machine, and prescribing the manner of conducting elections with it, was adopted in its entiret}'' in Michigan,* the act applying, however, to every city, town- ship and village in the State. At the same session of the Michigan Legislature the use of the "Abbot Yoting Ma- chine " was also legalized in cities, townships and villages.* § 729. While the construction of and manner of oper- ating these devices differ to some extent, the design in each cisions affecting the Australian system as introduced in this country, and no attempt has been made to review the decisions of the courts of other countries where the system has been adopted. A compilation of the decisions of foreign courts may be found in Wigmore's Australian Ballot System, 8d edition. 1 Act No. 98, Public Acts of 1893, p. 122. 2 Laws 1894, ch. 764 8Lawsl896, ch. 339. * Laws 1894, ch. 765. 6 Act No. 85, Public Acts of 1895, p. 185. •Act No. 76, Public Acts of 1895, p. 174 526 ELECTIONS. [chap. txt t. case is to secure absolute secrecy in voting, and speed and accuracy in counting the ballots. The Myers, Abbot and Davis machines are operated sub- stantially alike. There is a compartment to be occupied by the voter in voting, and a closed counter compartment con- taining the automatic mechanical counters. In the voters' compartment is arranged a frame in which appear the names of all candidates for office arranged in roAvs similar to the arrangement of official ballots under the Australian system, the party designations being at the head of the columns and the names of the offices to be filled appearing on the left. Propositions to be voted upon appear as upon official ballots. The different party tickets are distinguished from each other by the use of distinctive colors. "Where a candidate is nominated by two or more parties for the same office, his name is printed on the ballot of the party first nominating him, unless he designates a preference to appear otherwise. A key-board is arranged in connection with the ballot-frame, and the voter is enabled to register his choice of a straight ticket or of individual candidates by pressing a push-knob or similar device.^ The voters' compartment is fitted with one door for entrance and another for exit. The doors of the compartment are closed while the elector is voting and he is only permitted to remain in the compart- ment one minute. Provision is made whereby assistance may be rendered disabled voters. The machines are so constructed that repeating is impossible. The total number of votes cast is registered publicly upon a dial at the front iThe Abbot machine is of the type which keeps the record by means of registering wheels. The working parts of the apparatus are a set of slides, each carrying the name of a candidate for office. The machine is so constructed that the slides containing the names of the candidates may be moved singly or in unison, at the will of the voter, so that either a straight ticket or a split or scratched ticket may be voted at one motion. The operating bar carries the unit wheel of the candidate voted for forward one number each time a vote is cast for such candidate, thus adding each vote to those already received by the candidate. CHAP. XXII.] AUSTRALIAN BALLOT SYSTEM. 527 of the machine. The result of the vote for each candidate, and upon eaph proposition, is indicated upon dials in the counter compartment, but during the process of election this compartment is kept closed and locked. As soon as the polls are closed the entrance door of the voter's com- partment is locked. The inspectors, then, in the presence of the watchers and challengers, unlock and open the doors of the counter compartment. The result of the vote is then read from the dials and announced, and each and all are required to observe and record the total number of votes registered for each candidate and upon each question or proposition submitted; and such ascertainment of the re- sults is deemed to be the canvassing of the votes cast at the election.^ The Rhines machine differs from the others in that the voter is required to use a different machine in voting for candidates for each of the different offices to be filled, and the vote is recorded upon a ribbon contained in each ma- chine, which ribbon is preserved in the same way that bal- lots were preserved before the adoption of the law.' litis stated by reliable authority that at the last general election the result of the election at Hudson, Michigan, where a voting ma- chine was used, was announced by the inspectors one minute and forty- four seconds after the closing of the polls. 2 The mechanism of the Rhines machine is thus described in the New York "Nation" of April 18, 1889: " The ordinary paging machine of the printer suggested the main idea to Mr. Rhines. The principle involved is that of the counting ma- chine, as in the odometer. The machine itself is an oblong brass box about ten by fourteen inches, six inches deep, with a hinged cover. This box is placed on a small stand in the rear of the polling-room, and in plain sight of the judges and clerks of election. The voter is identified by the judges, and passes into the stall where the machine is. On raising the lid of the box, a screen is drawn up before the stall, shutting both voter and machine from view. The lid when raised discloses a number of keys not unlike organ stops. There are as many vertical rows of keys as the greatest number of candidates for any one office, and as many keys in a horizontal row as there are offices to be filled. The printed name of each candidate and the office for which he is nomi- nated are placed in the top of or above these keys. 628 ELECTIONS. [chap. XXII. " The elector in voting presses down the key bearing the name of the candidate he wishes to support. The key remains down. In being de- pressed it has locked all the keys of other candidates to the same office, thus making it impossible for an elector to vote for more than one can- didate for the same office; at the same time this key has imprinted indelibly, on a slip of paper beneath in the box, a number which shows the total vote cast for that candidate up to that time. The elector votes for each of the other offices in turn in the same way, shuts down the lid of the box, dropping the screen in front, exposing machine and voter to the view of the judges. The box-lid, on being closed, liberates all the keys, and the machine is ready for the next voter. " When the last elector has voted, the count is thus already made and recorded for each candidate, while the turnstile at the judges' desk has recorded the total number of voters admitted. There is no opportunity for repeating by closing and raising the lid, and thus setting free the keys; for each raising of the lid not only is visible to the officers but also rings an alarm bell." APPENDIX. LAWS OF THE UNITED STATES IN RELATION TO THE ELECTIVE FRANCHISE. ELECTION OF SENATORS. ELECTION OF REPRESENTATIVES ORGANIZATION OF MEETINGS OF CONGRESS. CONTESTED ELECTIONS. PRESIDENTIAL ELECTIONS. AlfiO A DISCUSSION OF THE QUESTION OF RESIDENCE AS A QUALIFICATION FOR VOTING, BEING PART OF REPORT OF THE COMMITTEE OF ELEC- TIONS IN THE HOUSE OF REPRE- SENTATIVES, U. S., IN CASE OF CESSNA V. MYERa THE ELECTIVE FRANCHISE.' (FROM THE REVISED STATUTES OF THE UNITED STATES, TITLE XXVI.) Sec 2002. Bringing armed troops to places of election. [Repealed.] 2003. Interference with freedom of elections by oflBicers of army or navy. 2004 Race, color, or previous condition, not to affect the right to vote. 2005. Nor the performance of any prerequisite. [Repealed.] 2006. Penalty for refusing to give full effect to the preceding seo tion. [Repealed.] 2007. What shall entitle a person to vote. [Repealed.] 2008. Penalty for wrongfully refusing to receive a vote. [Repealed.] 2009. For unlawfully hindering a person from voting. [Repealed.] 2010. Remedy for deprivation of office. [Repealed.] 2011. In cities or towns of over 20,000 inhabitants, upon written application of two citizens, the circuit judge to open court. [Repealed.] 2012. Supervisors of election. [Repealed.] 2013. Court to be kept open. [Repealed.] 2014. District judge may perform duties of circuit judge. [Re- pealed.] 2015. Construction of preceding section. [Repealed.] 2016. Duties of supervisors of elections. [Repealed.] 2017. Attendance at elections. [Repealed.] 2018. To personally scrutinize and count each ballot. [Repealed.] 2019. Their positions. [Repealed.] 2020. When molested. [Repealed.] 2021. Special deputies. [Repealed.] 2022. Duties of marshals. [Repealed.] 2023. Persons arrested to be taken forthwith before a judge. [Re- pealed.] 2024 Assistance of bystanders. [Repealed.] 2035. Chief supervisors of elections. [Repealed.] 2026. Their duties. [Repealed.] 2027. Marshals to forward complaint to chief supervisors. [Re- pealed.] . 2028. Supervisors and deputy marshals to be qualified voters, et& [Repealed.] 2029. Certain supervisors not to make arrests, etc [Repealed.] 2030. No more marshals or deputy marshals to be appointed than now authorized. [Repealed.] 2031. Pay of supervisors, etc. [Repealed.] Act of February 8, 1894 repealing certain sections. •The repealed sections, together with the repealing act, are Inserted here for oon. Tenience of reference in connectioa with decisions thereon referred to in the text. 532 AJ'fJiJSUiX. ELECTIVE x.iwii!i011iajfc Skc. 2C02. 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 armed men at the place where any general or special election is held in any State, imless it be necessary to repel the armed enemies of the United States, or to keep the peace at the polls. rRepealed.l 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 in- terfere with the freedom of any election in any State, or with the exer- cise of the free right of suffrage in any State. Sec. 2004. All citizens of the United States who are otherwise quali- fied 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 notwith- standing. 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. [Repealed.] Sec. 2006. Every person or officer charged with the duty specified in the preceding section, who refuses or knowingly omits to give full eflFect 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. [Repealed.] Sec. 2007. Whenevev 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, the ofier 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 ofier to perform, or acting thereon, be deemed and held as a performance in law of such act ; and the person so off"ering and fail- ing to vote, 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 [Repealed.] Sec. 2008. Every judge, inspector, or other officer of election whose duty 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. ELECTIVE FEANOHISB. 533 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 offi- cer from performing such act, shall forfeit the sum of five hundred dol- lars 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. [Repealed.] Sbc. 2009. Every officer 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, Terri- tory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall forfeit the sum of five hundred dol- lars 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. [Repealed.] Sec. 2010. Whenever any person is defeated or deprived of his elec- tion to any office, except elector of President or Vice-President, Repre- sentative 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, ou 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 by such 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 dis- trict court of the United States of the circuit or district in which such per- son 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 amendment to the Constitution of the United States, and secured herein. [Repealed.] Sec. 2011. 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 there- of, of good standing, who, prior to any registration of voters for an elec- tion for Representative or Delegate in the Congress of the United States, or prior to any election at which a Representative or Delegate in Con- gress is to be voted for, may make known, in writing, to the judge of the circuit court of the United States, tor the circuit wherein such city or town, county or parish, is situated, their desire to Lave such registration, or such election, or both, guarded and scrutinized, the judge, within not 534: APPENDIX. ELECTIVE FEANOHISB. less than ten days prior to the registration, if one there be, or, if no reg» istration 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. [Repealed.] 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 elec. tion 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. [Repealed.] Sec. 2013. The circuit court, when opened by the judge aa 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 jurisdic- tion 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. [Repealed.] Sec. 2014. 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. [Repealed.] Sec. 2015. llie 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. [Repealed.] Sec. 2016. The supervisors of election, bo 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 Representa- tive 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- giz, and verify the same ; and upon any occasion, and at any time when in attendance upon the duty herein prescribed, to personally inspect and scrutinize such registry, and for purposes of identification to affix their APPENDIX. — ELECTIVE FEANCHISE. 535 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. [Repealed.] Sec. 2017. 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 Mie 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 re- turns 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, [Repealed.] Sec. 2018. To the end that each candidate for the office of Represen- tative 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 dis- trict or voting precinct cast, whatever may be the indorsement on the bal- lot, 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 chief 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. [Repealed.] Sec. 2019. The better to enable the supervisors of elections to dis- charge 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- 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 536 APPENDIX. — ELECTIVE FEANCHISB. puri)ose 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 can- vass, certificates, returns, and statements has been wholly completed. [Repealed.] Sec. 2020. When in any election district or voting precinct in any city or town, for which there have been appointed supervisors of election 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, hinder- ance, 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 80 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 Clerk of the House of Representatives, all the evidence by him taken, all information by him obtained, and all reports to him made. [Repealed.] Sec. 2021. Whenever an election at which Representatives or Dele- gates 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 special deputy marshals, whose duty it shall be, when required thereto, to aid and assist the super- visors 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 pre- cinct [Repealed.] Sec. 2022. The marshal and his general deputies, and such special deputies, shall keep the peace, and support and protect the supervisors 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 poll- ing place, or elsewhere, and either before or after registering or voting, to arrest and take into custody, with or without process, any person who APPENDIX. ELECTIVE FRANCHISE. 537 commits, or attempts or oflFers to commit, any of the acts or offenses pro- hibited 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 duties 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 regis- tration. [Eepealed.] Skc. 2023. Whenever any arrest is made under 'any provision of this title, the person so arrested shall forthwith be brought before a commis- sioner, judge, or court of the United States for examination of the offen- ses 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. [Repealed.] Sec. 2024. The marshal or his general deputies, or such special deptu ties 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 re- sisted in executing their duties under this Title, orshall, by violence, threats, or menaces, be prevented from executing such duties, or from ar- resting 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 posse comitatus of his district. [Repealed.] 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 supervisor of elections of the judicial district for which he is a commissioner, and shall, so long as faithful and capable, discharge the duties in this Title imposed. [Repealed.] Sec. 2026. The chief supervisor shall prepare and furnish all neces- sary books, forms, blanks, and instructions for the use and direction of the supervisors of election in the several cities and towns in their respec- tive districts ; he shall receive the applications of all parties for appoint- ment to such positions ; upon the opening, as contemplated in section two thousand and twelve, of the circuit court for the judical circuit in which the commissioners so designated acts, he shall present such appli- cations 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 per- sons who may register and vote, or either, in their respective election dis- tricts or voting precincts, and cause the names of those upon any such list 538 APPENDIX. ELECTIVE FKANCHISB. whose right to register or vote is honestly doubted to be rerifled 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 ap- pointed under the provisions of this title, and all certificates, returns, re- ports, and records of every kind and nature contemplated or made requisite by the provisions hereof, save where otherwise herein spe cially directed. [Repealed.] Sec. 2027. All United States marshals and commissioners who in any judicial district perform any duties under the preceding provisions rela- ting to, concerning, or affecting the election of Representatives or Dele- gates in the Congress of the United States, from time to time, and, with all due dilligence, 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. [Repealed.] 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 per- formed. [Repealed.] 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 pres- ence of the officers holding the election, and to witness all their proceed- ings, including the counting of the votes and the making of a return thereof. [Repealed.] 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. [Repealed.;] Sec. 2031. There shall be allowed and paid to the chief supervisor, for his services as such officer, the following compensation, apart from and in ezeessof all fees allowed by law for the performance of any duty as circuit court commissioner: For filing and caring for every return, re- port, 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 j for entering and in- dexing the records of his office, fifteen cents per folio; and for arranging 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 APPENDIX.— ELECTIVE FEANOHISB. 639 days; but no compensation shall be allowed, in any case, to supervisors of election, except to those appointed in cities or towns of twenty thou- sand 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 accounts of com- missioners, save that the examination or certificate required may be made by either the circuit or district judge. [Repealed.] ACT OF FEBRUAEY 8, 1894. Ak Act to repeal all statutes relating to supervisors of elections and special deputy marshals, and for other purposes. Be it enacted, etc., That the following sections and parts of sections of the Revised Statutes of the United States be, and the same are hereby repealed; that is to say of title "Elective Franchise," sections twenty hundred and two, twenty hundred and five, twenty hundred and six, twenty hundred and seven, twenty hundred and eight, twenty hundred and nine, twenty hundred and ten, twenty hundred and eleven, twenty hundred and twelve, twenty hundred and thirteen, twenty hundred and fourteen, twenty hundred and fifteen, twenty hundred and sixteen, twenty hundred and seventeen, twenty hundred and eighteen, twenty hundred and nineteen, twenty hundred and twenty, relating to the apn pointment, qualification, power, duties, and compensation of supervis- ors of election; And also sections twenty hundred and twenty-one, twenty hundred and twenty-two, twenty hundred and twenty-three, twenty hundred and twenty -four, twenty hundred and twenty-five, twenty hundred and twenty-six, twenty hundred and twenty-seven, twenty hundred and twenty-eight, twenty hundred and twenty-nine, twenty hundred and thirty, twenty hundred and thirty-one of same title, relating to the appointment, qualification, power, duties and compensation of special deputies; And also of title " Crimes," sections fifty- five hundred and six, fifty- five hundred and eleven, fifty-five hundred and twelve, fifty-five hun- dred and thirteen, fifty-five hundred and fourteen, fifty-five hundred and fifteen, fifty-five hundred and twenty, fifty-five hundred and twenty- one, fifty-five hundred and twenty-two, fifty-five hundred and twenty- three. But the repeal of the sections hereinbefore mentioned shall not oper- ate so as to affect any prosecutions now pending, if any, for a violation of any of the provisions of said sections; And also part of section six hundred and forty-three,! as follows: " Or is commenced against any oflScer of the United States or other » The section here referred to relates to the removal of causes from State to Federal courts, against United States officers acting under color of office. 540 APPENDEC ELECTION OF SENAT0E8. person on account of any act done under the provisions of title twenty- six, The Elective Franchise, or on account of any right, title or author- ity claimed by any officer or other person under any of said provisions." SEa 2. That all other statutes and parts of statutes relating in any manner to supervisors of election and special deputy marshals be, and the same are hereby repealed. SEa 3. That this Act shall take effect from and after its passage. ELECTION OF SEl^ATOES. (REVISED STATUTES, U. 8., TITLE II, CHAPTER I| Skc. 14. When Senators to be elected. 15. Mode of election. 16. Vacancy oceurring before meeting of legislature. 17. Vacancy occurring during session of legislature. 18. Election of Senators certified. 19. Countersign of certificate. Sec. 14. The legislature of each State which is chosen next preceding the expiration of the time for which any Senator was elected to represent each State in Congress shall, on the second Tuesday after the meeting 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 vote of eack member present, naine •He 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 wotoi cast in each house, shall be entered on the journal of that house by tiie clerk or secretary thereof; or if either house fails to give such major. •ly 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 *re required to take place as aforesaid, the members of the two houses vUeit convene in joint assembly, and the journal of each house shall then be r*«d, 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 eiUter house has failed to take proceedings as required by this section, the joiirt assembly shall then proceed to choose, by a viva-voce vote of each mem- ber present, a person for Senator, and the person who receives a majority of all the votes of the joint assembly, a majority of all the members eleeted 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. APPENDIX. ELECTION 0¥ KEPEESENTATIVBS. 541 Sec. 16. Whenever on the meeting of the legislature of any State a vacancy exists in the representation of such State in the Senate, the legis- lature shall proceed, on the second Tuesday after meeting and organiz*. tion, 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. Skc. 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 has organized and has notice of such vacancy. Sec. 18. 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. 19. The certificate mentioned in the preceding section shall b« countersigned by the secretary of state of the State. THE ELECTION OF REPRESENTATIYES. (THE FOLLOWING ARE THE MATERIAL PORTIONS OF THE ACTS OF CONGRESS IN FORCE UPON THIS SUBJECT, AND FOUND IN REVISED STATUTES, U. S., TITLE II, CHAPTER II.) Skc. 23. 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 has been repealed by the following Act: ACT OF FEBRUARY 7, 1891. As Act making an apportionment of Representatives in Congress among the several States imder the eleventh census. Be it enacted, etc., That after the third of March, eighteen hundred and ninety-three, the House of Representatives shall be composed of three hundred and fifty-six members, to be apportioned among the sev- eral States, as follows: Alabama, nine. Florida, two. Arkansas, six. Georgia, eleven, California, seven. Idaho, one. Colorado, two. Illinois, twenty-twa Connecticut, four, Indiana, thirteen. Delaware, one. Iowa, eleven. 542 APPENDIX. ELECTION OF REPRESENTATIVES. Kansas, eight. North Carolina, nine. Kentucky, eleven. North Dakota, one. Louisiana, six. Ohio, twenty-one. Maine, four. Oregon, two. Maryland, six. Pennsylvania, thirty. Massachusetts, thirteen. Rhode Island, two. Michigan, twelve. South Carolina, seven. Minnesota, seven. South Dakota, twa Mississippi, seven. Tennessee, ten. Missouri, fifteen. Texas, thirteen. Montana, one. Vermont, twa Nebraska, six. Virginia, ten. Nevada, one. Washington, two. New Hampshire, two. West Virginia, four. New Jersey, eight. Wisconsin, ten. New York, thirty-four. Wyoming, one. Seg 2. That whenever a new State is admitted to the Union, the Representative or Representatives assigned to it shall be in addition to the number three hundred and fifty-six. SEa 3. That in each State entitled under this apportionment the number to which each State may be entitled in the Fifty-third and each subsequent Congress shall be elected by districts composed of con- tiguous territory and containing as nearly as practicable an equal number of inhabitants. The said districts shall be equal to the number of the Representatives to which such State may be entitled in Con- gn^ess, no one district electing more than one Representative. Sec 4 That in case of an increase in the number of Representatives which may be given to any State under this apportionment, such addi- tional Representative or Representatives shall be elected by the State at large, and the other Representatives by the districts now prescribed by law until the Legislature of such State in the manner herein pre- scribed shall redistrict such State, and if there be no increase in the number of Representatives from a State, the Representatives thereof shall be elected from the districts now prescribed by law until such State be redistricted as herein prescribed by the Legislature of said State. Sec. 5. That all acts and parts of acts inconsistent with this act are hereby repealed. « • • • »»•««*•••* 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, com- mencing on the fourth day of March next thereafter. APPENDIX. OEGAlSriZATION OF MEETINGS OF CONGEESS. 543 Ch. 130, Sup. 1874-1891, R. S. (p. 76). SEa 6. That section twenty-five of the Revised Statutes, prescribing the time for holding elections for Representatives to Congress, is hereby modified so as not to apply to any State that has not yet changed its day of election, and whose Constitution must be amended in order to effect a change in the day of the election of State officers in said State. Sec. 26. The time for holding elections in any State, District, or Ter- ritory, 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 pre- scribed by the laws of the several States and Territories respectively. Sec. 27. All votes for Representatives in Congress must be by written or printed ballot ; and all votes received or recorded contrary to this sec- tion, shall be of no effect But this section shall not apply to any State voting otherwise whose election for Representatives occurs previous to the regular meeting of its legislature, next after the twenty-eighth day of February, eighteen hundred and seventy-one. ORGANIZATIOIT OF MEETINGS OF CONGRESS. (FROM REVISED STATUTES, U. S., TITLE II, CHAPTER III.) Sec. 28. Oath of Senators. 29. Oath of President of the Senate. Act of April 18, 1878, authorizing Presiding officer, Secretajy and Chief Clerk of Senate to administer oaths. 30. Oath of Speaker, members and Delegatea 31. Roll of Representatives-elect. 82. When roll made by Sergeant-at-Arma. 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. SEa 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. ACT OF APRIL 18, 1876. Am Act further to provide for the administering of oaths in the Senate. Be it enacted, etc.. That the presiding officer, for the time being, of the Senate of the United States, shall have power to administer all oaths and affirmations that are or may be required by the Constitution, or by law, to be taken by any Senator, officer of the Senate, witness, or other person, in respect to any matter within the jurisdiction of the Senate. Sec. 2. That the Secretary of the Senate, and the Chief Clerk thereof. 544 APPENDIX. — CONTESTED ELECTIONS. shall, respectively, have power to administer any oath or aflBrmation required by law, or by the rules or orders of the Senate, to be taken by any officer of the Senate, and to any witness produced before it. SEa 30. At the first session of Congress after every general election of Representatives, the oath of office shall be administered by any mem- ber 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 Rep- resentatives elect, and place thereon the names of those persons, and of rach 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 offices 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 Repre- sentatives, 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 preva- lence of contagious sickness or the existence of other circumstances, it would, in the opinion 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. (PROM REVISED STATUTES U. S., TITLE II, CHAPTER YIIL) SEa 105. Notice of intention to contest 106. Time for answer. 107. Time for taking testimony. Act of March 2, 1875, construing preceding section. 108. Notice of deposition, service. 109. Testimony taken at several places at same time. APPENDIX. — CONTESTED ELECTIONS. 545- SEa 110. Who may issue subpoenas. 111. What the subpoena shall contain. 112. When justices of the peace may acL 113. Depositions, by consent 114. Service of subpoena. 115. Witnesses need not attend out of the counlj. 116. Penalty for failure to attend or testify. 117. Witnesses outside of district. 118. Party notified may select an officer. < ■ 119. Depositions taken by party or agent 120. Examination of witnesses. 131. Testimony, to what confined. 122. Testimony how written out and attested. 123. Production of papers. 124. Adjournments. 125. Notice, etc., attached to deposition. 126. Copy of notice and answer to accompany testimony. 127. [Amended.] How testimony to be sent to Clerk of House; how opened. 128. Fees of witnesses. 129. Fees of officers. Act of March 3, 1879, expenses of contest. Sec. 105. 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 deter- mined by the officer or board of canvassers authorized by law to deter- mine 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. 106. Any member upon whom the notice mentioned in the preceding section may be served shall, within thirty days after the ser- vice 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. 107. 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. ACT OF MARCH 2, 1875. Ch. 119, Sup. 1874-1891 (p. 69). SEa 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 election to be taken within ninety days from the day on which the answer of the returned member is served upon the contestant. 546 APPENDIX. — CONTESTED ELECTIONS. 8bo. 108. The party desiring to take a deposition under the provi sions of this chapter shall give the opposite party notice, in writing, oJ the time and place, when and where the same will be taken, of the nam* of the witness to be examined and their places of residence, and of the name of an oflacer 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 h'm to take testimony or cross-examine wit- nesses in the matter of such contest, if, by the use of reasonable dili- gence, such personal service can be made ; but if, by the use of such diligence, personal service can not be made, the service may be made by leaving a duplicate of the notice at the usual place of abode of the op- posite party. The notice shall be served so as to allow the opposite party sufficient time by the usual route of travel to attend, and one day for preparation exclusive of Sundays and the day of service. Testimony in rebuttal may be taken on five days' notice. Sec. 109. Testimony in contested-election cases may be taken at two or more places at the same time. Skc. 110. When 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 th« 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. Skc. 111. The officer to whom the application authorized by the pre- ceding section is made, shall thereupon issue his writ of subpoena di- rected to all such witnesses as shall be named to him, requiring theii attendance before him, at some time and place named in the subpoena, in order to be examined respecting the contested election. Sec. 112. In case none of the officers mentioned in section one hun- dred 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 district; and they may receive such application, and jointly proceed upon it. Sec. 113. It shall be competent for the parties, their agents or attor- neys authorized to act in the premises, by consent in writing, to take depositions without notice ; also by such written consent, to take depo- sitions (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 charac- ter of such officer or officers. Any written consent given as aforesaid shall be returned with the depositions. Sec. 114. 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 leaal APPENDIX. CONTESTED ELECTIONS. 547 five days before the day on which the attendance of the witness is re- quix-ed. Sec. 115. 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. 116. Any person who, having been summoned in the manner above directed, refuses or neglects to attend 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 in- stance the subpoena was issued, and for his use, by an action of debt, in j.ny court of the United States; and shall also be liable to an indictment for a misdemeanor, and punishment by fine and imprisonment. Sec. 117. Depositions of witnesses residing outside of the district and beyond the reach of a subpoena may be taken before any ofiicer au- thorized by law to take testimony in contested-election cases in the dis- trict in which the witness to be examined may reside. 8bc. 118. 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 ofiicer named in the notice, in the taking of the depositi(»ns ; and if both such oflicers 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. 119. At the taking of any deposition under this chapter, either party may appear and act in person, or by agent or attorney. Seo. 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 nny other officer who is authorized to issue such sub- poena, 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 diMtrict 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. 121. Th<9 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 officer shall cause the testimony of the witnesses, to- gether 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. 123. The officer shall have power to require the production of papers; and on the refusal or neglect of any person to produce and de- liver up any paper or papers in his possession pertaining to the election, NTE3TED ELECTIONS. 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. SEa 124. The taking of the testimony may, if so stated in the notice, be adjourned from day to day. SEa 125. The notice to take depositions, with the proof or acknowl- edgment of the service thereof, and a copy of the subpoena, where any has been served, shall be attached to the depositions when completed. SEa 126. A copy of the notice of contest and of the answer of the returned member, shall be prefixed to the depositions taken, and trans- mitted with them to the Clerk of the House of Representativea SEa 127 AS AMENDED BY ACTT OF MARCH 2, 1887. Ch. 318, Sup. 1874-1891 (p. 553). All officers taking t^estimony 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 or by express, addressed to the Clerk of the Hoiise of Representatives of the United States, Washington, District of Columbia; 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 The Clerk of the House of Representatives, upon the receipt of such deposition or testimony, shall notify the contestant and the contestee, by registered letter through the mails, to appear before him at the Capitol, in person or by attorney, at a reasonable time to be named, not exceeding twenty days from the mailing of such letter, for the purpose of being present at the opening of the sealed packages of testimony, and of agreeing upon the parts thereof to be printed. Upon the day appointed for such meeting, the said Clerk shall pro- ceed to open all the packages of testimony in the case, in the presence of the parties or their attorneys, and such portions of the testimony as the parties may agree to have printed shall be printed by the Public Printer, under the direction of the said Clerk ; and in case of disagree- ment between the parties as to the printing of any portion of the tes- timony, the said Clerk shall determine whether such portion of the testimony shall be printed; and the said Clerk shall prepare a suitable index to be printed with the record. And the notice of contest and the answer of the sitting member, shall also be printed with the record. If either party, after having been duly notified, should fail to attend, by himself or by an attorney, the Clerk shall proceed to open the pack- ages, and shall cause such portions of the testimony to be printed as he shall determine. He shall carefully seal up and preserve the portions of the testimony APPENDIX, — CONTESTED ELECTIONS. 549 not printed, as well as the other portions when returned from the Pub- lic Printer, and lay the same before the Committee on Elections at the earliest opportunity. As soon as the testimony in any case is printed, the Clerk shall for- ward by mail, if desired, two copies thereof to the contestant and the same number to the contestee; and shall notify the contestant to file with the Clerk, within thirty days, a brief of the facts and authorities relied on to establish his cas& The Clerk shall forward by mail two copies of the contestant's brief to the contestee, with like notice. Upon receipt of the contestee's brief, the Clerk shall forward two copies thereof to the contestant, who may, if he desires, reply to new matter in the contestee's brief within like time. All briefs shall be printed at the expense of the parties respectively, and shall be of like folio as the printed record; and sixty copies thereof shall be filed with the Clerk for the use of the Committee on Elections. Skc. 128. Every witnes* 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. 129. 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 en- titled to receive from the party at whose instance the service shall have been performed, such fees as are allowed for similar services in th-t &ate, wherein such services may be rendered. ACT OF MARCH 3, 1879. (3h. 182, par. 14, Sup. 1874-1891, R. S. (p. 252). That hereafter no contestee or contestant for a seat in the House of Representatives shall be paid exceeding two thousand dollars for ex- penses in election contests. And before any sum whatever shall be paid to a contestant or con- testee for expenses of election contest he shall file with the Clerk of the Committee on Elections a full and detailed account of his expenses, ac- companied by the vouchers and receipts for each item, which account and vouchers shall be sworn to by the party presenting the same, and no charges for witness fees shall be allowed in said accounts unless made in strict conformity to section one hundred and twenty-eight of the Revised Statutes of the United Statea 550 AFPfiNDIX. — «r££SID£NTIAL ELECTIONS. PRESIDENTIAL ELECTTOKS. {PROM REVISED STATUTES U. 8., TITLE III, CHAPTER L) Seo. 131. Time of appointing electors. 132. Number of electors. 133. Vacancies in electoral college. 134. Failure to make a choice on the appointed day, 335. Meeting of electoral college. 136. List of names of electors to be furnished to them. 137. Manner of voting. 138. Certificates to be made and signed. 139. Certificates to be sealed and indorsed. 140. The transmission of the certificates. 141. When Secretary of State shall send for district judge's list 142. Counting the electoral votes in Congress. 143. Provision for absence of President of the Senate. 144 Mileage of messengers. 145. Forfeiture for messenger's neglect of duty. Act of January 19, 1886, repealing sections 146 to 150 in- clusive, and providing for the performance of duties of President in case of disability of President and Vice-Presi- dent. 151. Resignation or refusal of oflBce. fiKC. 131. Except in case of a presidential election prior to the ordi- nary period, as specified in sections one hundred and forty-s«ven to one hundred and forty-nine, inclusive, when the offices of President and Vice- President both become vacant, the electors of President and Vice-Presi- dent 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. 132. 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 Representa- tives 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. Sbo. 133. Each State may, by law, provide for the filling of any yacaO' APPENDIX. PRESIDENTIAL ELECTIONS. 551 cies which may occur in its college of electors when such college meets to give its electoral vote. Sec. 134. 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 man- ner as the legislature of such State may direct. Sec. 135. The electors for each State shall meet and give their votes upon the first Wednesday in December, in the year in which they are appointed, at such place, in each State, as the legislature of such State shall direct Sec. 136. 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 cer- tified, and to be delivered to the electors on or before the day on which they are required, by the preceding section, to meet. Sec. 137. The electors shall vote for President and Vice-President respectively, in the manner directed by the constitution. Sec. 138. 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. 139. 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. 140. 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. 141. Whenever a certificate of votes from any State has not been received at the seat of Government on the first Wednesday of January, indicated by the preceding section, the Secretary of State shall send a special messenger to the district judge in whose custody one certificate of the votes from that State has been lodged, and such judge shall forth- with transmit that list to the seat of Government. Sec. 142. 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 has been received, shall then be opened, the votes 552 APPENDIX. ^PEESIDENTIAL ELECTIONS. counted, and the persons to fill the offices of Pre3ident and Vice-Preei- deat ascertained and declared agreeable to the constitution. Skc. 143. In case there shall be no President of the Senate at the seat of Government on the arrival of the persons intrusted with the certifi- cates 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. iSec. 144. Each of the persons appointed by the electors to deliver the certificates of votes to the President of the Senate shall be allowed, on the delivery of the list entrusted to him, twenty-five cents for every mile of the estimated distance, by the most usual road, from the place of meet- ing of the electors to the seat of government of the United States. Skc. 145. Every person, who, having been appointed, pursuant to sub- division 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. ACT or JANUARY 19, 1886. An Act to provide for the performance of the duties of the oflQce of President In case of the removal, death, resignation, or Inability, both of the President and Vice-Presi- dent. Be it enacted, etc., That in case of removal, death, resignation or in- ability of both the President and Vice-President of the United States, the Secretary of State, or if there be none, or in case of his removal, death, resignation or inability, then the Secretary of the Treasury, or if there be none, or in case of his removal, death, resignation or inability, then the Secretary of War, or if there be none, or in case of his removal, death, resignation or inability, then the Attorney-General, or if there be none, or in case of his removal, death, resignation or inability, then the Postmaster-General, or if there be none, or in case of his removal, death, resignation or inability, then the Secretary of the Navy, or if there be none, or in case of his removal, death, resignation or inability, then the Secretary of the Interior shall act as President until the dis- ability of the President or Vice-President is removed or a President shall be elected: Provided, That whenever the powers and duties of the office of Presi- dent of the United States shall devolve upon any of the persons named herein, if Congress be not then in session, or if it would not meet in accordance with law within twenty days thereafter, it shall be the duty of the person upon whom said powers and duties shall devolve to issue a proclamation convening Congress in extraordinary session, giving twenty days notice of the time of meeting. Sec. 2. That the preceding section shall only be held to describe and APPENDIX. PRESroENTIAL ELECTIONS. 553 apply to such officers as shall have been appointed by the advice and eonsent of the Senate to the offices therein named, and such as are eligible to the office of President under the Constitution, and not under impeachment by the House of Representatives of the United States at the time the powers and duties of the office shall devolve upon them respectively. Sec. 3. That sections one hundred and forty-six, one hundred and forty-seven, one hundred and forty-eight, one hundred and forty-nine and one hundred and fifty of the Revised Statutes are hereby repealed. Sec. 151. The only evidence of a refusal to accept, or of a resignation 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. ACT OF FEBRUARY 3, 1887. An Act to fix the day for the meeting of the electors of President and Vice-President, and to provide for and regulate the counting of the Totes for President and Vice- President, and the decision of questions arising thereon. Be it enacted by the Senate and Rouse of Representatives of the United States of America in Congress assembled, That the electors of each. State shall meet and give their votes on the second Monday in January next following their appointment, at such place in each State as the legisla- ture of such State shall direct. Sec. 3. That if any State shall have provided, by laws enacted prior to to the day fixed for the appointment of the electors, for its final determi- nation of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or pro- cedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to the said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned. Sec. 8. That it shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of electors in such State, by the final ascertainment under and in pursuance of the laws of such Slate providing for such ascertainment, to communicate, under the seal of the State, to the Secretary of State of the United States, a certificate of such ascertainment of the electors appointed. Betting forth the names of such electors and the canvass or other ascer- tainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are reqired by the preceding section to meet, the same cer- 654 APPENDIX. PRESIDENTIAL ELECTIONS. tiflcate, in triplicate, under the seal of the State ; and such certificate shall be inclosed and transmitted by the electors at the same time and in the same manner as is provided by law for transmitting by such electors to the seat of Government the lists of all persons voted for as President and of all persons voted for as Vice-President; and section one hundred and thirty-six of the Revised Statutes is hereby repealed; and if there shall have been any final determination in a State of a controversy or contest as provided for in section two of this act, it shall be the duty of the executive of such State, as soon as practicable after such determina- tion, to communicate under the seal of the State, to the Secretary of State of the United States, a certificate of such determination, in form and manner as the same shall have been made ; and the Secretary of State of the United States, as soon as practicable after the receipt at the State Department of each of the certificates hereinbefore directed to be trans- mitted to the Secretary of State, shall publish, in such public newspaper as he shall designate, such certificates in full; and at the first meeting of Congress thereafter he shall transmit to the two Houses of Congress copies in full of each and every such certificate so received theretofore at the State Department. Ssc. 4. That Congress shall be in session on the second Wednesday m February succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Repre- sentatives at the hour of one o'clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously 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, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabeti- cal order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall maice a list of the votes as they shall appear from the said certifi- cates ; and the votes having been ascertained and counted in the manner and according to the rules in this act provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice- President of the United States, and together with a list of votes, be en- tered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Repre- sentatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision ; and the Speaker of the House APPENDIX. PKESIDENTIAL ELECTIONS. 555 of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision ; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section three of this act from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return of paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section two of this act to have been ap- pointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such va- cancy in the mode provided by the laws of the State ; but in case there shall arise the question which of two or more of such State authori- ties determining what electors have been appointed, as mentioned in section two of this act, is the lawful tribunal of such State, the votes regu- larly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so author- ized by its laws ; and in such case of more than one return or paper pur- porting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concur- rently decide such votes not to be the lawful votes of the legally ap- pointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the execu- tive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the pre- siding oflicer shall then announce the decision of the questions sub- mitted. No votes or papers from any other State shall be acted upon until the objections previously made t' the votes or papers from any State shall have been finally disposed of. Sec. 5. That while the two Houses shall be in meeting as .provided in this act the President of the Senate shall have power to preserve order ; and no debate shall be allowed and no question shall be put by the presiding oflicer except to either House on a motion to withdraw. Sec. 6. That when the two Houses separate to decide upon an objec- tion that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Sena- tor and Representative may speak to such objection or question five minutes and not more than once ; but after such debate shall have lasted 556 APPENDIX. ^PRESIDENTIAL ELECTIONS. two hours it shall be the doty of the presiding oflScer of each House to put the main question without further debate. Sec. 7. That at such joint meeting of the two Houses seats shall be provided as follows: For the President of the Senate, the Speaker's chair; for the Speaker, immediately upon his left; the Senators, in the body of the Hall upon the right of the presiding officer ; for the Repre- sentatives, in the body of the Hall not provided for the Senators; for the tellers, Secretary of the Senate, and Clerk of the House of Representa- tives, at the Clerk's desk ; for the other officers of the two Houses, in front of the Clerk's desk and upon each side of the Speaker's platform. Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such vot«s, or otherwise under this act, in which case it shall be competent for either House, acting separately, in the manner herein before provided, to direct a recess of such House not beyond the next calendar day, Sunday ex- cepted, at the hour of ten o'clock in the forenoon. But if the counting of the electoral votes and the delaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other receis shall be takeu by either House. Approved, February 3, 1887. ACT OF OCTOBER 19, 1888. A» Act supplementary to an act approved February third, eighteen hundred and eighty-seven, entitled, " An Act to fix the day for the meeting of the electors of Presi- dent and Vice-President, and to provide for and regulate the counting of the votes for President and Vice-President, and the decision of questions arising thereon." Be it enacted, etc., That the certificates and lists of votes for President and Vice-President of the United States, mentioned in Chapter one of Title three of the Revised Statutes of the United States, and in the act to which this is a supplement, shall be forwarded in the manner therein provided, to the President of the Senate forthwith after the second Monday in January, on which the electors shall give their votes. Sec. 2. That section one hundred and forty-one of the Revised Stat- utes of the United States is hereby so amended as to read as follows: "Sec. 141. Whenever a certificate of votes from any State has not been received at the seat of Government on the fourth Monday of the month of January in which their meeting shall have been held, the Secretary of State shall send a special messenger to the district judge in whose custody one certificate of the votes from that State has been lodged, and such iudge shall forthwith transmit that list to the seat of Government." APPi£I!iDI&. ££SLDJ£l{a& tS57 RESIDENCE. Honse of Eepresentatives, 42d Congress, 2d Session, Keport No. 11. JOHN CESSNA VS. BENJAMIN F. MEYERS. Fbbbitabt 7, 1872.— Laid on the table and ordered to be printed. Hr. Hoar, from the committee on elections, made the following REPOKT: THB COMMITTEB ON EliEOTIONS, TO WHOM WAS REFERRED THE MEM- ORIAL OP 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 ques- tions 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 estab- lished 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, 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,^ 558 APPENDIX. EESIDENCK. 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 1. In elections by the citizens every (white) free- man 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 immediately preceding such election, and within two years paid a State or coimty tax which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector. But a citizen of th« United States who had previously been a qualified voter of this State, and removed there- from 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 mis- conduct 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 quali- fication 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 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 county 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 those who voted for his competitor lacked the qualification of residence in the elec- tion district. The largest number to whom this objection applies came into the election district for the purpose of working upon a railroad in APPENDIX. KESIDENCE. 559 process of construction therein, were employed in building said railroad, and were not proved to have formed any intention to reside in the dis- trict 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 de- scribing the qualification of voters is equivalent to " domicile," not in the sense in which a man may have a commercial domicile or residence in 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 attempt- ing to apply them as inflexible rules in all. Probably the definition which is most expressive to the American mind is that a man's domicile is " where he has his home." Two or three rules, however, are well estab- lished. A man must have a domicile somewhere ; a domicile once gained 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 ia 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 of fact that may arise. For instance, Vattel defines domicile to be '■'^ a fixed residence in any place, with an intention of always staying there." On this Judge Story (Conflict of Laws, Sec. 43) well remarks: "This is not an accurate state- ment. 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 after he forms the inten- tion of removing therefrom, and sometimes even after he removes, until he gets another. A man may acquire a domicile, 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 clergyman of the Methodist church who is set- tled 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 commentators and in judicial decisions which seem to support the claim — that persona)^ 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 660 APPENDIX. EESIDENOB. as a general rule. It y true of those persons, probably the greater num^ ber, who, while so preiont and engaged in business, have some other principal seat of their int jresls and aflfections 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 hia 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 placd 'jC his home. But we are now dealing with a class of persons who bar') 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 renoimced, 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 pre- sumption that his home is elsewhere, comes into an election district for the purpose of working on a railroad for a definite or an indefinite 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 in- tention 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 sup- posed 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 elsewhere, will not answer the law. The rule is stated by Chief Justice Shaw, in Lyman vs. Fiske, (5 Pick. 234,) as follows: " It is difl^cult 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, pur- suits, connections, attachments, and of his political and municipal rela- tions. 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 con- duct 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 sofflcient to turn the scale." APPENDIX. RESIDENCE. 561 The article in the appendix to Yol. 4 of Dr. Lieher's Encyclopjodia 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, when- ever 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. A fortiori would this be true if his " floating intention '' were to go else- where 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, usually acquire a residence in the district where they are employed, if the elec- tion officers be satisfied they are honestly there pursuing their employ- ment, 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." A fortiori would this reasoning apply to the married laborer who takes his family with him. The habits of our people, compared with many other nations, are migra- tory. To persons, especially young men, in many most useful occupa- tions, 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 of tem- porary sojourn, to which some other place, which is more truly the prin- cipal seat of the aff"ections or interests, has superior claim, we see not why the policy of the law should not attach to it all the privileges which be. long to residence, as it is quite clear that it is the residence 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 the committee determined the case, but is a concession to the party against whom it was decided. It therefore, if it bore the meaning contended 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 tem- porary purpose, with the intent to leave it when that purpose is accom- plished, no other intent and no other fact appearing, is not enough to gain 662 APPENDIX. EESIDENOE. a residence. In this view, it is not in conflict with the opinion here ex- pressed. It is true that, as was remarked in the outset, a former residence con- tinues 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 evidenc in the case. The contestant claims that three principal classes of persons who voted 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 rail- road; 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: Ist Where no other fact appears than that a person, otherwise quali- fied, came into the election district for the purpose of working on the railroad for an indefinite period, or imtil it should b- completed, and voted 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 th 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 residenc in the voting precinct, the 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 resi- dence, 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 ter- minate, is not necessarily inconsistent with a legal residence, or want of legal residence, in such place. This is to be determined by all the cir- cumstances 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 APPENDIX. EE8IDENCE. 563 his minority, would of course be of the highest importance. See Putnam vs. Johnson, 10 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 con- tested election cases cited by the contestant, it is stated by the committee that, in the absenc of statute regulations on the subject, a pauper abiding in a public almshouse, locally situated in a different district from that where h«» dwells when he becomes a pauper, and by which he is sup- ported, away from his original home, does not thereby change hia resi- dence, but is held constructively to remain at bis 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 con- sent. 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 in- terest. 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 residence — 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 tliia question, as will hereafter appear. INDEX. A. ABANDONMENT, Section, of office, temporary departure from, no • • • • • • . 254 otomce 848 ABOLITION, of voting precincts, effect of ••••••••••. 44 ACT OF CONGRESS, April 14, 1803 84, 85 June 25, 1843 190, 191 July 11, 1850 190 February 19, 1851 429 March 3, 1865 122, 124 July 25, 1866 151, 153 May 31, 1870 40, 43, 48, 137, 273 July 14, 1870 80 January 10, 1873 451 February 18, 1875 80 March 32, 1882 45 March 2, 1887 448 section 2018, Revised Statutes ....•• 258 section 5508, Revised Statutes 146 sections 5511-5515, Revised Statutes 257 section 5515, Revised Statutes 148, 144 600 section 5520, Revised Statutes 148 section 5522, Revised Statutes 143, 600 enforcement act, constitutionality of. .••... 143. 144 liability of State officials under 256, 257 construction of, as to mode of proceeding 372 such acts directory only ...••.•••.. 873 ADJOURNMENT, of election 160,166 ADVICE, of friends, no defense to prosecution 609 of counsel 616, 617 666 rMDBX. AFRICAN DESCENT, Section, persons of, may be naturalized 80 ALIEN (see Naturalization), election of to United States Senate, void 348 discharged from military service 71 AMENDMENT TO UNITED STATES CONSTITUTION, Fifteenth, does not confer the right of suffrage 40 confers substantial and affirmative right 40, 41 limits power of States to fix qualifications of voters . 36, 47 Fourteenth, does not confer suffrage upon women ... 63, 64 does not confer citizenship upon Indians 81 AMENDMENTS, in pleadings in contest must be made without delay . . 441, 443 APPOINTMENT, to oflSce, see Officer. ATTORNEY FOR THE UNITED STATES, not disqualified to hold office as Representative in Congress 339a AUSTRALIAN BALLOT SYSTEM, origin of the system and introduction in other countries . . 691 introduction in the United States 692 provision for an official ballot 693 directions governing printing of ballots 694 size and style and arrangement of names upon the ballots . 695 rule where one candidate is named for same office by two or more parties 696 manner of nominating candidates and filing certificates of nomination 697 duty of Secretary of State when certificates of nomination are filed by rival factions of a party 698 the limitation of the right to have ballots printed at public expense and to have names of candidates printed thereoB, not unconstitutional 699 right of the voter to vote for the person of his choice . . . 700 right of a political convention to delegate authority to make nominations 701 a candidate nominated by individual electors not the nominee of a political party 702 nomination papers; how signed 703 mass conventions not prohibited in Minnesota 704 provisions of the statute concerning certificates of nomination mandatory or directory 705 other provisions liberally construed . 706 what constitutes filing. of certificate of nomination . . • 707 INDEX. 567 AUSTRALIAN BALLOT SYSTEM (continued), Section, petitioners may proceed by mandamus to compel oflScer to certify the name of a candidate 708 effect of wrongful certificate as to a part of the candidates upon the ballot 708 certificates for filling vacancies 709 printing and distribution of sample ballots 710 sample ballots voted by mistake; effect of 711 appointment of judges, clerks, challengers and watchers . . 713 voting compartments 713 act of voting; how accomplished 714 provision requiring voter to prepare ballot in voting com- partment 715 provision requiring initials of two judges of opposite parties upon the ballot not mandatory 716 the requirement that the ballot must bear the initials of a judge of election held unconstitutional in Nevada . . .717 assistance to disabled voters 718 assistance, how rendered 719 provisions defining manner of marking ballot generally held to be mandatory 720 use of distinguishing marks 721 effect of marks accidentally made 722 effect where voter writes his name upon the ballot .... 723 general principle applicable in determining whether provis- ions are mandatory or directory 724 primary elections in Kentucky held under Australian system 725 separate ballots and ballot-boxes provided for women in some States 726 general provisions for the prevention of fraud 727 use of voting machines authorized in Michigan and New York 728 voting machines; how constructed and operated .... 729 B. BALLOT (see Australian Ballot System), mistake in name of candidate in • • • . . 213 handling by candidate 214 numbering 226 correction of mistake in depositing 280-233 election ofiicers have no power over, after deposited . . . 279 application for recount of 435 as evidence 471 provisions for safe keeping must be strictly followed . . . 472 proof that they have not been tampered with .... 473, 474 caption of, as prescribed in Missouri 549a 568 INDEX. BALLOT (continued), Section, construction of statutes requiring preservation of ... . 475 recount • 476,477 lose their character as primary evidence when 478 loss or destruction of, secondary evidence 479 secondary evidence, Judge Cooley's views 480 importance of rule requiring preservation and production of identical 481 inspection of, when ordered 483 correction of return by reference to 483 preservation of secrecy of 488, 489 voter cannot be compelled to divulge for whom he voted . 489-491 this rule does not protect illegal voter 490-494 voter may waive his privilege 492 circumstantial evidence admissible 493 rule as to disposition of illegal votes in the absence of proof showing for whom they were cast 495 marked in violation of law, inadmissible 498 fraudulent 681 regulation as to size and form of 681 provisions against counting misleading 690 BALLOT-BOX. separate State and Federal boxes, mode of voting . , . 173, 174 irregularities as to 229 separate, for State and Federal officers 230-233 separate, for women, in some States 726 BALLOTS, IMPERFECT (see Australian Ballot System), incorrect spelling of names and the like 528 may be explained by parol proof 529 the true rule upon the subject 530 ambiguous ballot; surrounding circumstances shown to ex- plain voter's intent 530, 531 illustrations 530 the rule as stated by Judge Cooley 530 ballots containing a greater number of names than there are offices to be filled 532, 533 ballots written or printed on several pieces of paper . . . 534 ballots marked in violation of statute 535, 536 statutes forbidding distinguishing marks, when mandatory . 537 effect of statute regulating size and form of ballot .... 538 what is a " distinguishing mark " upon a ballot 539 construction of statute requiring indorsement upon ballot of name of office voted for 540 ballot may be bad in part and good as to remainder . . . 541 repetition of name of candidate 543 INDEX. 669 BALLOTS, IMPERFECT (continued), Section. distinction between ambiguous and void ballots 543 ballot may be explained, but cannot be contradicted . . . 543 writing prevails over print 543 rule as to admissibility of evidence alitmde to explain ballot . 544 courts not bound by rules which govern canvassers .... 545 illustrations 546 the term " written " includes what is printed 547 constitutionality of statutes requiring ballots to be numbered 548 substantial compliance with statute as to form of ballot suffi- cient ... 549 BETTING, upon result of election 218, 219 BOARD, ELECTION, fraudulent organizati(Mi of .•• 171 BRIBERY, in elections 215-217 offer in nature of, by candidate 833 c. CANVASS, partial, insufficient •... 272 in accordance with returns, may be compelled 412 by city council, prima facie evidence 501 presence of unauthorized persons at 580 CANVASSERS, may be compelled by mandamus to determine and certify re- sult 384,385 decision of, conclusive in collateral proceeding . • . . . 417 CANVASSING BOARD, bound by returns 263-266 after adjournment cannot generally recount vote . . . 267, 268 but may be compelled to complete canvass 269, 270 CANVASSING OFFICER, duty of • 260 CAPTION OF BALLOT, as prescribed in Missouri •.. 549a CENSUS, of population ••••••. 463 CERTIFICATE OF ELECTION, facts which it may contain ••••. 278 person holding, allowed to act pending contest 302 form of 803 of majority of certifying board suffioient • • 804 570 INDEX. CERTIFICATE OF ELECTION (continued), Section. who may issue 306 prima facie evidence of title to oflBce 304, 306 confers vested right, but does not oust jurisdiction of proper tribunal 806,308 when none issued to either claimant, power of House of Rep- resentatives 309-313 based upon partial canvass, effect of 814 cannot be impeached collaterally 816 effect of showing only partial canvass 314 cannot be collaterally attacked 814, 816 further discussion as to effect of 818-321 may contain matters which destroy its chairacter as prima facie evidence of election 331 prima facie evidence only 874 issued under mandamus not conclusive 418, 419 of particular person, not generally compelled 421 duty of certifying officer ••.. 249 CHANGE of residence 94^ 95, 96, 100 CHINESE, not entitled to naturalization ••• 80 CITIZENSHIP (see NaturalizationX meaning of 66, 67, 68 distinction between citizen and inhabitant 68 rights of inhabitants of acquired territory 69 necessary to right to vote 346 certain Indians citizens ••• 81 CIVIL LIABILITY (see Election Officebs). COLOR OF AUTHORITY, defined 253 COMMISSION, power of Governor to revoke .......•••. 802 COMPROMISE, by parties to contest, not allowed ......... 454 CONFLICT OF AUTHORITY, State and Federal 866 CONGRESS (see Act of Congress), organization of, see Appendix limitations of power of 89, 40 power of over qualifications of voters 89-43 over Federal elections 43 to supplement State legislation 42 DTDEX. 571 CONGRESS (continued), Section. power to punish frauds in Federal elections ...... 43 to legislate for Territories 45 cannot compel State courts to naturalize foreigners ... 74 may adopt or alter State regulations in Federal elections . 142, 143 implied power 145 to regulate Federal elections 142-144 over such elections 145, 146 power of, to require election of members by districts . . 191, 192 credentials of members of 305 power of House when no certificate has been issued to either claimant 809-313 State has no power to fix qualifications of Representative in 326 member of, may resign without notice to House 862 canvass of votes for member of, may be compelled by manda- mus in State court 390 State laws rules of decision in 457, 461 State statute regulating elections not binding upon . . . 529 decisions of State tribunals prima facte evidence .... 580 CONTEMPT, power of Legislature to punish for 637 not general, but limited «... 640 CONTESTANT, not absolutely necessary to contest 871 CONTESTED ELECTIONS (see Appendix; Evidence; Peoobd. ure; Remedies; Tribunals), parties not allowed to discontinue or compromise .... 454 interest of people in 455 continuances not generally allowed 456 CONTINUANCE, not generally allowed ...••..•••••. 456 CONTRACTS, tending to corrupt elections ........... 220 CONVICTION OF CRIME, must be shown by record of trial and conviction by compe- tent court 123,124344,345 effect of 332 CORPORATE ELECTIONS, corporations governed by stockholders 641 each shareholder entitled to one vote for each of his shares of stock unless otherwise provided • . 642 qualifications for voting in a corporation ..... ^ . 643 interest of stockholder in general no disqualification . . . 643 672 INDEX. CORPORATE ELECTIONS (continued), Section. limitation of this rule 643 rights of stockholders 644 equitable assignment of stock 645 right to vote not limited to natural persons 645 qualification of rule that legal holder of shares may vote upon them 646 corporate transfer book as evidence of title 647, 648 rights and duties of persons holding stock as trustees . . . 649 contract of membership, when complete 650 mode of conducting stockholders' meetings 651 notice 653 how given 653 may be by statute, charter, by-laws or standing rules, as well as by publication 653, 654 mandamus to compel calling of election 654, 655 election must be held at reasonable time and place .... 656 adjournment 657 validity of corporate meeting held beyond borders of State creating the corporation 658, 659 voting by proxy unknown at common law ...•«. 660 but now generally recognized , . 660 conduct of corporate election 661, 662 illegal voting 663 cumulative voting 664 cannot be forced upon corporations after their organiza- tion 664,667 election of directors 665 right to vote for less than whole number 665, 666 votes for disqualified or ineligible candidate 668 failure to elect officers at proper time 669 tenure of officers of corporation . . . • • 670 holding over •..•. 670 remedies for illegal corporate elections ..•••••• 671 CORRECTION, of final return by reference to primary returns 613 CORRUPTION, use of money to influence elections .••.•••. 213, 214 bribery 215,216 contracts tending to corrupt elections •••••••. 220 COSTS, in contests ..••••••••••••••• 468 COUNT, of votes without delay 678, 679 INDEX. 5T3 COURTS, Section, jurisdiction of, over contested election, in absence of special provisions , 381 CREDENTIALS (see Cebtifioatb), effect of 802 form of 803 of members of Congress 305 who may issue 306 CRIME, effect of conviction of 333 commission of, how shown 123, 124^ 844, 345 does not ipso facto vacate oflSoe 354 CROWDING, polls, evils of 674 statute of Kansas to prevent 684 CUMULATIVE VOTING, minority representation and 212 in corporate elections 674 cannot be forced upon corporations after their organization 674677 D. DAMAGES, exemplary, when allowed against election oflScers .... 801 when not allowed for refusal to induct into ofice .... 806a DEAF MUTES, may vote under law providing for viva voce voting ... 117 DEATH OF CANDIDATE, how affecting election .•.•••.•••... 881o DEATH OF CONTESTEE, status of successor ••••. 466a DECLARATIONS, of illegal voters as to how they voted . 483-494 conflict of authority as to their admissibility 484 discussion of question in House of Representatives . . . 485-487 DEFAULT, no judgment by, in the United States House of Representa- tives 446,447 DESERTION, from military service, validity and effect of act of Congress of March 3, 1865 122 DEVICE ON BALLOT, when prohibited vitiates ballot ••••••.•«. 689a 574 INDEX. DIRECTORS, Section, election of corporate .............. 665 right to vote for less than whole number 665, 666 votes for disqualified candidate 668 DIRECTORY, what provisions of statute are 335-228 DISABLED VOTER, assistance furnished to ••... 718 how rendered ..•,.. 719 DISCRETION, of election officers 294-296 DISCRIMINATION, on account of race, color, or previous condition of servitude, forbidden •.,. 40 DISFRANCHISEMENT, as a punishment for crime 118 DISQUALIFICATION, disfranchisement as a punishment for crime not cruel or un- usual 118 infamous crimes 119-131 dueling 119,120 sending or accepting a challenge to fight a duel .... 119, 130 effect of sentence of fine under act authorizing fine or im- prisonment in the penitentiary 130 conflicting decisions 130 discussion as to meaning of " infamous crime " 131 decisions of the United States Supreme Court 131 desertion from military service 133 effect of act of Congress of March 8, 1865 133 judgment of a court of competent jurisdiction after trial nec- essary 133 the question is judicial and must be decided by the courts . 134 record of conviction must be produced before election officers 134 effect of pardon 135 knowledge of 587, 588 DISTRICTS, effect of change of •••... 47 power of Congress to require election by . . , , . . 191, 193 DUELING, sending or accepting a challenge 119, 130 under Constitution of Kentucky 844 DTDEX. 675 E. ELECTION DISTRICTS (see District^). Section. ELECTIONS (see Contested Elections; Corporate Elections; Evidence; Procedure; Remedies; Tribunals). ELECTIONS, FEDERAL, qualifications of voters same as for State elections .... 86 power of Congress over 43 to punish violations of State laws ...••.. . 43 to adopt or alter State regulations 142, 143 express and implied power of Congress over 142-146 ELECTION OFFICERS, bound by certificate of naturalization 77 acting clerk a candidate 228 have no authority over ballots once deposited ..... 234 mistakes of, not to prejudice voters 235-239 effect of violence towards 241 effect of reckless disregard of law by 242 validity of acts of oflScers de facto 247-252 color of authority defined 253 • temporary departure of oflScer, no abandonment .... 254 the oflBce must lawfully exist 255 State and Federal officials may act at same election . . . 256 paramount authority of latter with respect to Federal elections 257 liability of State officials under act of Congress in certain cases 256,257 election offiscers not to be interfered with 258 duties of certifying officer , 259 canvassing officer 260 what are ministerial 261 canvassers can receive no evidence outside of returns unless expressly authorized by law 262-266 have in general no power after adjournment to reconvene and recount vote 267,268 but may be compelled by mandarwus to re-assemble and com- plete their work in certain cases 269, 270 amending return under statute of Massachusetts .... 271 partial canvass not sufficient 272 Governor of State not an election officer within meaning of the act of Congress of May 31, 1870 273 law presumes validity of official acts of an election officer . 274 adjournment of an election by order of proper officer presumed to be valid 274, 275 no right to organize independent or outside polls .... 276 576 INDEX. ELECTION OFFICERS (continued), Seetton. effect of division of election precinct 277 facts which may be certified 278 no power over ballot after same is deposited 279 duty of town clerk under law of New Hampshire .... 280 opening and closing polls 281 time within which oflBcial act shall be performed .... 282 provisions as to mode and manner generally directory . . . 283 number of voting places 284 fraudulent refusal to establish voting places 285, 286 when judges may refuse to administer oath to voter . . . 287 failure to appoint inspectors of election within time required 288 civil liability 289-301 wilful and corrupt denial of right of voter 289 in what cases malice must be shown 289 rule in Massachusetts and Ohio 289, 290 rule in Pennsylvania 291 rule where duty is gitasi- judicial 292 honest mistake by registering officer 293, 294 statutes prescribing specific duties must be obeyed . . . 295-297 duly of election board where voter offers to take statutory oath 295,296 what will amount to seasonably placing voter's name upon the list '. 297 duty of voter to furnish evidence of his right 298 statements of voter as to his place of residence maybe proven 298 malice not presumed 299 evidence that officers of election knew that plaintiff differed from them in his political sentiments 800 exemplary damages, when allowed 801 effect of entire disregard of law 510, 511 evidence of appointment of inspectors of election .... 512 failure to make return 522 proof that they were not sworn 525 not necessary to show intentional vrrong on part of, in reject- ing vote 527 fraud by 674 not necessary to show participation by, in fraud, in order to impeach result 578 what acts of, will constitute fraud 579 liability for fraudulently appointing illiterate inspector . . 599 distinction between ministerial and gtiasi-judicial powers of 600 not liable for mistake of judgment in Pennsylvania ... 611 non-partisan boards 677 presence of witnesses 677 counting votes without delay 678, 679 INDEX. 577 ELECTIVE FRANCHISE (see Appendix; Suffrage; Sover- eignty), Section. power of the States and of the United States to fix qiialifica- tions 36 power of the State limited by the Fifteenth Amendment to the Constitution of the United States 36 State regulations followed by Federal government .... 37 except such as conflict with Federal Constitution or laws . 87 qualifications of voters for Presidential electors 38 nature and extent of power of Congress over suffrage . . 89 rights conferred by Fifteenth Amendment 40, 41 power of Congress thereunder 40, 41 decisions of United States Supreme Court 42 regulation of Federal elections, power of Congress .... 42 punishment of fraud in Federal elections ...... 43, 44 regulation of Territorial elections 45 nature of right of suffrage and whence derived .... 1-10, 46 Legislature cannot add to or alter constitutional qualifica- tions 47 change of election districts 47 right to representation in government cannot be impaired or taken away 48, 49, 51, 52 voter may be questioned as to qualifications 50 validity of acts prescribing test oaths 52-56 act authorizing Governor to impair right of suffrage, void . 57 regulations must be reasonable 58 distinction between regulation and impairment of the right to vote 58-62 casting vote in case of tie 62 right may be limited to male citizens 63 but may by constitutional provision, or sometimes by legis- lative act, be extended to females 63 but only upon the same terms and conditions as are applied to males 63 construction of Fourteenth Amendment to the Constitution of the United States 64 what questions may be submitted to popular vote .... 197 local option •.. 201 plurality generally sufficient to elect 206-208 meaning of "a majority of the voters of a county" . . . 208 and of " the qualified voters therein " 209 deciding tie vote by lot 210, 211 minority representation and cumulative voting . . • • • 212 ELECTORS (see Voters). 87 578 INDEX. ELECTORS, PRESIDENTIAL, Section. qualifications of voters for, fixed by States 36, 38 mode of choosing 38 ELIGIBILITY, to oflfice, see Office. certificate of election not conclusive as to . • . . . 818, 319 qualifications for Federal oflSces 322 qualifications for State offices 322, 823 qualifications of Representatives in Congress 324 meaning of the term "inhabitant," as xised in the United States Constitution 324 residing abroad as representative of the government of the United States 325 a State has no power to fix qualifications of Representatives in Congress 326 effect of votes cast for ineligible candidate 327-331 the English rule 328 not generally adopted in this country 828-330 decision of United States Senate 331 effect of conviction for crime 333 effect of an offer by candidate for office in the nature of a bribe 333 effect of absence while engaged in discharge of duties of pub- lic office 334 holding an incompatible office 835 incompatibility defined 835, 336 holding an office under the United States 337 effect of acceptance of commission in military service upon tenure of member of Congress 338 effect of same in case of member of Congress elected but not sworn in 338,339 acceptance of incompatible office equivalent to resignation . 840 lucrative office 841 character of residence required • . 843 election of alien to United States Senate entirely void . . 843 dueling under Constitution of Kentucky 344 conviction necessary to disqualify 844, 345 citizenship necessary whether expressly so provided or not . 346 Legislature cannot add to constitutional qualifications . . 347 vacancy, when judicial declaration of is necessary . . . 856-358 cannot be anticipated 359 in office of United States Senate 360 filling such by executive appointment 361 member of Congress may resign withoutj notice to the House 363 INDEX. 579 ELIGIBILITY (continued), Section. declaration of by Governor 363 that may happen " during recess of the Senate "... 364 discussion as to construction of article 2, section 2, clause 2, Constitution of the United States 364 power to fill generally 365 construction of article 1, section 3, United States Consti- tution 365 in what oases Legislature may fill offices 366 right of incumbent to fees and emoluments 367 in this country appointment or election creates no contract for any particular period 368 EMOLUMENTS, of office, right to 367 ENFORCEMENT ACT, constitutionality of •... 143, 144 EQUITY, courts of, will not interfere with contested election case . . 817 no jurisdiction to enjoin holding of election 886 or to restrain counting of illegal votes 887 but may restrain the receipt of illegal votes 388 will not restrain recording of abstract of votes on the ground of fraud 889 EVIDENCE, duty of voter to furnish, as to his right 298 statements of voter as to residence admissible 298 that election officers knew plaintiff differed from them in political sentiments 300 certificate of election prima facte only 874 extension of time for taking 452, 453 ordinary rules of evidence apply ......••.. 459 presumption as to official integrity 459 record evidence 460 State laws rules of decision in Congress 461 when necessary to prove number of qualified electors in given territory 462 census of population 463 official list of freeholders under Virginia statute .... 464 land books of the county under same ........ 465 official list of registered voters 466 presumption that person who has voted was qualified ... 467 want of naturalization, how established 468 fraudulent naturalization papers • • • « 468 may be attacked by parol evidence 469 680 INDEX EVIDENCE (continued), Section. proof of non-residence 469 registration not conclusive of right 470 ballots as evidence 471 provisions for safe keeping must be strictly followed . . 472 rule as to proof that they have not been tampered with . 474 construction of statute requiring preservation of . . . 475 recount of 476, 477 lose their character as primary evidence when .... 478 loss or destruction of ballots, secondary evidence . , . 479 Judge Cooley's views 480 importance of rule requiring proof of preservation and pro- duction of the identical ballots cast 481 inspection of, when ordered 482 correction of return by reference to 482 legality presumed 466a declarations of illegal voters as to how they voted . , . 48^-494 conflict of authority as to their admissibility .... 484 the English rule 484 rule in New York and Wisconsin 484 decisions in other States 484 discussion of the question in the House of Representatives of the United States 485-487 preservation of secrecy of ballot 488, 489 voter cannot be compelled to divulge for whom he voted 489-491 but this rule does not protect one who votes illegally 492, 494 voter may waive his privilege 492 circumstantial evidence admissible 493 rule as to disposition of illegal votes in the absence of proof showing for whom they were cast 495 when new election should be ordered 496 consequence of neglect to furnish proof within reach of party 497 ballots marked in violation of law generally admissible . . 498 character of proof required to vitiate a vote received and counted by the election board 499 weight to be given to decision of judges of election . , , 500 canvass by city council prima facie evidence 501 general rule for solving questions of evidence in contested election cases 502 returns and election papers may be impeached upon quo war- ranto 508 parol evidence admissible to impeach 503 tally sheets, if required by law to be kept, admissible in evi- dence 504-506 poll books prima /acie evidence only 507 may be impeached for fraud ...'....... 607 INDEX. 581 EVIDENCE (continued), Section. return must be signed 508 held admissible for some purposes, though unsigned, if otherwise proved 509 effect of entire disregard of the law by election oflBcers . 510, 511 proof of true vote by secondary evidence 513 evidence of appointment of inspectors of election .... 513 correction of final return by reference to primary returns . 513 absence of oath will not vitiate return 514 rule as to setting aside return 515 illustrations 515-517 distinction between rejecting return and setting aside elec- tion 518 State statute regulating elections not binding upon Congress 519 but decisions of State tribunals under such statutes prima facie evidence 520 rule as to proving votes when return has been rejected . . 521 failure of the officers of one of several precincts to make re- turn 522 rule as to rejection of entire poll 523, 524 proof that officers of election were not sworn 525 proof of alteration of return 526 not necessary to show intentional wrong on part of election officer in rejecting vote 527 rule as to admissibility of evidence aliunde to explain ballot 544 of intimidation 566 return, if free from fraud, the best evidence 569, 570 nature of, required to impeach return 571 character of parol proof which may be admitted , . . 572, 573 circumstantial, tending to show fraud 575 effect of proof of fraud which does not change result . . , 576 check list as 577 not necessary to show that officers participated in fraud . • 578 aliunde the return 578 effect upon return of proof of excess of votes ..... 583 of fraud, circumstantial 583 burden of proof to show non-residence 618 defendant's statement at time of voting not admissible . . 619 of title to corporate stock, transfer book ...... 647, 648 R FEDERAL ELECTION (see Appendix; Elections), FEDERAL GOVERNMENT, power of, see CoNQREsa. 682 INDEX. FEES, gectiotu of office, right to 367 FEMALE SUFFRAGE, not conferred by Fourteenth Amendment ...••• 68, 64 but right to may be given by State 64 FIFTEENTH AMENDMENT (see Amendment to United States Constitution). FOREIGN STATE, acquired, organization of, necessary to valid Federal election in 244 FOURTEENTH AMENDMENT (see Amendment to Unitkd States Constitution). FRANCHISE (see Elective Franchise). FRAUD (see Impeachment; Returns), in Federal elections, may be punished by Congress .... 48 fraudulent organization of election board ....... 171 poll books may be impeached for 502 fraudulent return must fall to ground ........ 571 by officers and others 574 circumstantial evidence tending to show 575 which does not change result, effect of proof of 576 not necessary to show that officers participated in, in order to impeach return 578 provisions for the prevention of ••... 727 G. "GENERAL ELECTION,'» meaning of phrase ••••••> 194, 195 GOVERNMENT OF UNITED STATES, power of, see Congress. GOVERNOR, cannot be authorized to set aside registration • • • • . 57 of State, not an election officer 273 power of, to revoke commission •.... 807 contest as to office of 869 jurisdiction of courts over ...•••«..•• 882, 883 H. "HEAD OF FAMILY," meaning of ..•.•••••••••••. 114 "HOUSEKEEPER," meaning of ••••.•.. 114 INDEX. 583 I. INCOMPATIBILITY, Section, in offices 335-340 IDEM SONANS, doctrine of 631, note when shifting the burden of proof as to legality of count . . 682a IDIOTS, not qualified to vote 115, 116 ILLEGAL VOTING (see Prosecution; Returns). IMPEACHMENT (see Returns). INDIAN RESERVATION, residence on ••••••••• 93, 93 INDIANS, certain, not entitled to naturalization ........ 81 certain, entitled to naturalization .••.«••. 81, note INDICTMENT, for illegal voting, requisites of 603 must advise defendant definitely of nature of charge . . 604, 605 not always sufficient to follow words of statute .... 606-614 for repeating 612 must state where illegal vote was cast 614 INFAMOUS CRIMES, what are 119-121 INFORMATION, in quo warranto 425 INHABITANTS, meaning of term ' 66, 324^ 325 INSPECTORS, cannot withdraw ballot deposited in box by mistake . . . 224 evidence of appointment of 512 fraudulently appointing illiterate 599 INTENTION, importance of, in determining question of residence . . 102, 103 INTIMIDATION (see Violence), may be punished by Congress •••• 146 pfotection of voters against •••••• 680 burden of proof as to effect ••• 560a IRREGULARITY (see Ballots; Violence), irregular reception of legal votes ....••••• 172 return of votes after time prescribed 201 invalidity of partial return .......••.• 202 58i INDEX. IRREGULARITY (continued), Section. effect of irregular transmittal of returns 203-205 effect of irregularities 223-225 numbering ballots 226 what statutes are mandatory 227-229 and what directory 227-229 depositing ballot in wrong box 230-233 voting by mistake in wrong precinct 234 adoption of erroneous rule by oflScers of election affecting class of voters 235 voter not generally prejudiced by errors or mistakes of elec- tion officers 236-239 unconstitutional police regulations 240 effect of violence toward election officers 241 effect of reckless disregard of essential requirements . . . 242 illustrations of rule that mere irregularities will not vitiate an election 243 holding of elections in Territory acquired from foreign gov- ernment 244 holding an election in a Territory in anticipation of admission into the Union 245 formation of State government out of part of organized Ter- ritory 246 effect upon remainder 246 rule as to setting aside returns 515 illustrations 515-517 in conducting election, no defense to prosecution for violation of election law 601 J. JUDGES, of election, weight to be given to decisions of 600 JUDGMENT, of court necessary to disqualify voter on account of crime • 123 JURISDICTION (see Contested Elections), of House to judge of election of member, exclusive .... 877 of special tribunals 878 of courts, in absence of special provision of law 881 of courts, extends to contest for office of Governor .... 882 but not to control Governor in performance of official funo* tions 883 none in equity to enjoin election 386 in quo toarranto not ousted by statutory right of contest . . 895 JURY, trial by, not allowed 891, 893 DTDBX 585 L. LEGISLATIVE BODY, Section, importance of established rules governing organization . . 620 members holding usual credentials entitled to participate in organization 631 temporary organization 623 statutory regulations 623 no general business until members have been sworn . . . 624 power of Houses of Congress over election, returns and qualifi- cations of their members 625 powers and duties of clerk of lower House of Congress . . 626 division of legislative body which ought to be a unit . . . 637 rule for determining which is the legal organization . . 628, 629 distinction between supreme and subordinate legislative bodies 628 power of courts over the latter 638 important case in Pennsylvania 628 question between rival bodies each claiming to be Legislature 629 decision of United States Senate 629-631 power of legislative body to preserve order and decorum . . 633 duty of presiding officer 633 power of Houses of Congress over their members .... 634 expulsion 634,635 jurisdiction to inquire into acts done before election . . 635, 636 power to punish for contempt 637 power over witness summoned before them 637, 638 power of legislative bodies generally over witnesses . . . 638 refusal of witness to answer questions 639 act of Congress of January 24, 1857 639 power of House and of courts under said act 639, 640 power of legislative body to punish for contempt not general, but limited 640 decision of the Supreme Court of the United States in Kil- bourne v. Thompson 640 LEGISLATURE, may regulate but not impair right to vote 44-48 power of, to require voter to answer as to qualifications . . 50 cannot add to constitutional qualifications 847 jurisdiction of 870 mode of proceeding before 370 when exclusive judge of election of member 380 LIABILITY, civil, of election officers 289-301 LIST, seasonable placing of voter's name on •••••••. 397 LOCAI^OPTION LAWS, validity of 198-300 586 INDEX. LOT, Scctton. deciding tie vote by 210, 211 LUNATICS, not qualified to vote 115, 116 M. MAJORITY, of the voters of a county, meaning of 208 of the qualified voters therein, meaning of 209 MALICE, when must be shown to render election officer liable . . . 289 not presumed 299 MANDAMUS, may be used to compel special tribunals to act 879 to compel canvassers to determine and certify result . . 384, 385 in State court to compel canvass of votes for Representative in Congress 390 and quo warranto, remedy by 397, 400 to compel keeping of office at county seat 401 not granted where there is another adequate remedy . . 402, 403 nor to oust incumbent of office 404 nor to control performance of judicial duties 405, 416 nor to compel recognition of person adjudged elected . . 406, 409 will lie to compel discharge of ministerial duties . , . 406-411 and to compel appointment in certain cases 410 also to compel canvass in accordance with returns .... 412 no answer to writ to show that returns are irregular ... 413 discretionary with court .... 414 office of writ 415 certificate of election issued under, not conclusive . . . 418, 419 will lie to compel registration of legal voter 420 but not generally to compel certificate of election ef particu- lar person ...» 421 general rules stated 422, 423 to compel calling of corporate election ......( 654, 655 MANDATORY, what regulations are ••.. 125-129 MANNER (see Registration), of conducting registration 139 statutes prescribing, generally directory 140 of conducting election of Senators in Congress 150 change of voting place 158, 159 adjournment of election 160, 166 premature closing of polls 161 keeping polls open after lawful hours 162-165 persons not voting generally bound by result 167 INDEX. 587 MANNER (continued), Section. exceptions to this rule 168-170 fraudulent organization of election board ....... 171 irregular reception of legal rotes 172 mode of voting where separate boxes are provided by law for State officers and members of Congress 173, 174 Toting by proxy unknown at common law, but allowed in cer- tain corporate elections 175 of conducting special elections 196 provisions as to, generally directory 283 MENTAL CAPACITY, required as a qualification for voting 115,116 MILITARY, interference by 652 force, surrounding polls by ••. 653 stationing, in vicinity of election 554 misconduct of soldiers stationed near voting place ... 555-557 calling out, on election day 558 MILITARY RESERVATION, residence on ••••••• 92^ 93 MILITIA, calling out, on election day 668 MINISTER, effect of residence abroad • 825 MINISTERIAL DUTIES, what are •••••. 261 MINOR, liability of, who votes believing he is of age 596 status of, after father's declaration 856 MINORITY REPRESENTATION 212, note MISCONDUCT (see Election Officers). MISTAKE, correction of 280-233 voting in wrong precinct • 234 effect of honest, by registering officer ....... 293, 294 MODE AND MANNER (see Manner), provisions as to, generally directory 283 MONEY, corrupt use of, to influence election .••••••• 21^ 214 N. NAMES, mistake or variation in •••••••. 222 incorrect spelling of 528 surplusage of 532, 533 588 INDEX. NATURALIZATION, Section. necessary to qualify alien to vote 70 summary of naturalization laws ,, 71 when inferred 79a collective 85a of minor children after father's declaration ...... 85b must be by court of record 73 State courts may decline to naturalize foreigners .... 74 application must be made in open court 75 judgment of, final 76 except in cases of fraud or want of jurisdiction 76 certificate of, binding upon election officers ...... 77 when oath of voter admissible 78 record of, what to contain 79 Chinese not entitled to 80 persons of African descent may be naturalized 80 who may be naturalized 80 rights of certain Indians to citizenship ........ 81 residence required 83 also good moral character 83 rights of minor children of naturalized parents under act of Aprill4,1803 84,85 rights of children born abroad whose parents are citizens . 86 want of, how established 468 fraudulent papers of 468 may be attacked by parol evidence 469 fraudulent naturalization certificates 584 voting upon void certificate of . 589, 590 NAVY YARD, UNITED STATES, residence at 89 non-residence, proof of •••• 469 NOTICE, of election, may be required 58 of election 177-188 when prescribed, is necessary, and when not 178-181 distinction as to, in cases of general and special elections . 182-185 in contested election cases 426 must be served within time prescribed 427 rule for computing time 428 specification of grounds of contest in 429 names of illegal voters need not be stated 429 proof of service of 430 of stockholders' meeting 652 how given 653 by statute, etc. 653,654 INDEX. 689 NUMBERING, Bection. of ballots 226 o. OATH (see Test Oath), when judges may refuse to administer to voter ..... 287 duty of board where voter offers to take statutory . . . 395, 296 when its administration may be refused 306a absence of, will not vitiate return 514 proof that officers of election were not sworn 525 OFFER TO VOTE, when constituting a vote 537a, 527& of public facilities, not a bribe .......... 216 OFFICE, can be no office de facto 255 civil liability for misconduct in 289-301 prima facie right to 302-821 importance of the subject 802 the person holding ordinary credentials presumed elected and allowed to act pending contest 802 credentials, form of 808 certificate of majority of certifying board sufficient . . . 804 credentials of members of Congress 305 who may issue 806 certificate ©f election confers vested right, but does not oust jurisdiction ©f proper tribunal 806-308 power of Governor to revoke commission 307 power of lower House of Congress when no certificate has been issued to either claimant 309-818 effect of certificate showing only partial canvass .... 814 certificate of election cannot be collaterally attacked . . 815, 816 courts of equity will not interfere with contested election case 317 further discussion as to effect of certificate of election . 818-321 qualifications for Federal offices 322 qualifications for State offices 822, 823 qualifications of Representatives in Congress 824 meaning of the term "inhabitant," as used in the United States Constitution 824 residing abroad as representative of the Government of the United States 335 State has no power to fix qualifications of Representatives in Congress 326 effect of votes cast for ineligible candidate 827-331 the English rule 838 590 INDEX. OFFICE (continued), Section. not generally adopted in this country 328-330 decision of United States Senate 331 effect of conviction for crime 833 effect of an offer by candidate for office in the nature of a bribe 833 effect of absence while engaged in discharge of duties of pub- lic office 834 holding an incompatible office 335 incompatibility defined 835, 386 holding an office under the United States 837 effect of acceptance of commission in military service upon tenure of member of Congress 838 effect of same in case of member of Congress elected but not sworn in 838, 339 rule as to incompatibility 840a acceptance of incompatible office equivalent to resignation . 840 lucrative office 841 character of residence required 343 election of alien to United States Senate entirely void . . . 843 dueling under the Constitution of Kentucky 344 conviction necessary 844, 345 citizenship necessary whether expressly so provided or not . 346 Legislature cannot add to constitutional qualifications . . 847 abandonment of an office 848 holding over until successor is chosen and qualified . . 349-351 resignation, acceptance not necessary 353 tenure during good behavior 853 right to hearing before removal 354 commission of crime does not ipso facto vacate office . . . 854 power of removal 355 when judicial declaration of vacancy is necessary . . . 85*-358 vacancy cannot be anticipated «... 859 vacancy in office of United States Senator 360 filling such vacancy by executive appointment 361 member of Congress may resign without notice to the House 863 declaration of vacancy by Governor 363 vacancies that may happen " during recess of the Senate " . 864 discussion as to construction of Article 3, Section 3, Clause 3, Constitution of the United States 364 power to fill vacancies generally 365 construction of Article 1, Section 3, United States Constitution 365 in what cases Legislature may fill offices 366 right of incumbent to fees and emoluments 867 in this country appointment or election creates no contract for any partictdar period 868 INDEX. 691 OFFICERS (see Election Officers), Section. de facto, validity of acts of 247-253 color of authority defined 253 temporary departure of officer no abandonment 254 the office must lawfully exist 255 may be compelled by mandamus to keep office at county seat 401 cannot be ousted by mandamus 404 nor controlled in performance of judicial duties .... 405, 416 of corporation, tenure of ••.. 670 holding over •••••• 670 P. PARDON, effect of 125 PAROL PROOF, imperfect ballot may be explained by , . 529, 830 PAUPER, residence of ,, 104 PEOPLE, who are the people 11 declarations upon the subject contained in the Declaration of Independence and in preambles to constitutions .... 13 the theories of early speakers and writers 18 conclusion from the foregoing 14 arguments of counsel in Chisholm, Ex'r, v. State of Georgia . 15 view of the Supreme Court of the United States in Penhal- low V. Doane's Adm'rs 16 doctrine as stated by Judge Taney in Dred Scott v. Sanford . 17 at the time of the formation of the Union the people were the citizens, independent of age or sex 18 how did the Constitution become binding upon the people . 19 the theory of consent by ratification 20 view of the Supreme Court of the United States in Inglis v. Trustees of Sailor's Snug Harbor 21 view of the same court in "Ware v. Hylton 33 ttie provisions of constitutions binding upon all citizens, irre- spective of age or sex 23 in the United States the right of suffrage depends upon the will of the people 10 have the people, by constituting the electors, surrendered the sovereignty 24 the right to fix the qualifications of voters is in the people of the respective States, subject to limitation contained in the Fifteenth Amendment 31 qualifications of electors determined by the people in constitu- tional conventions 33 592 IITDEX. PEOPLE (continued), Section, power of the people to limit the discretion of voters in the choice of persons to fill oflSices 33 inability of the people to withdraw political power, except in the manner provided by Constitution 84 PETITION, in contest, requisites of in Ohio 434 PLACE OF ELECTION, must be fixed by law 253 is of the substance 176 change of voting place 158, 159 power of Governor to fix place of election for Representatives in Congress 186 provisions of law affecting, generally mandatory . . . 228, 229 corporate election must be held at reasonable 656 where meeting is held beyond borders of State .... 658, 659 multiplication of precincts 675 PLEADINGS (see Procedure), requisites of 484 ^6, 445 PLURALITY, generally sufficient to elect 206-208 POLICE REGULATIONS, effect of unconstitutional 240 POLL BOOKS, prima facie evidence only 507 POLLS, premature closing 161 keeping open after lawful hours ......... 162-165 independent or outside, illegal 276 opening and closing 281 rule as to rejection of entire 628, 524 evils of crowding 674 provisions against crowding . 674 POPULAR VOTE, what questions may be submitted to 197-200 PRACTICE (see Procedure), usually governed by local statutory regulations or rules ©f legislative bodies 424 PRECINCTS, effect of abolition of 44 voting in wrong 234 effect of division of 277 PRESIDENTIAL ELECTIONS (see Appendix; Electors). PRESUMPTION (see Evidence). INDEX. 593 PROCEDURE, Section. in contest before legislative body 370 construction of acts of Congress as to 372 such acts directory only 373 practice usually governed by local statutory regulations or rules of legislative bodies 424 information in quo warranto 425 notice , 426 must be served within the time prescribed 428 rule for computing time 428 specification in notice of grounds of contest 429 names of illegal voters need not be stated 429 proof of service of notice 430 statutes providing for contesting elections to be liberally con- strued 431 the claimant must set forth a meritorious case 432 mode of verifying grounds of contest 433 requisites of petition under Ohio statute 434 application for recount of ballots 435 statutory mode must be followed 436 requisites of pleading 437-439 certainty to common intent only required 440 amendments must be made without delay 441-443 pleadings in special statutory proceedings 444 what issues may be tried 445 no judgment by default in the United States House of Repre- sentatives 446, 447 mode of proceeding in contested election cases in the United States House of Representatives 448-450 importance of rule requiring sitting member to proceed with diligence 451 extension of time for taking of testimony 452, 453 parties not allowed to discontinue or compromise .... 454 where contestee dies 456a interest of the people in contested election cases ..... 455 continuances not generally allowed 456 State law followed in Congressional contests 457 costs 458 PROOF (see Evidence), when new election should be ordered 496 within reach of party, consequences of neglect to furnish . . 497 PROSECUTIONS, statutory remedy exclusive 585 whether the crime of illegal voting can be punished at com- mon law, query 585, 586 594 INDEX. PROSECUTIONS (continued), Section. decision of the question in Massachusetts 585 ruling in Ohio 585 conflict of authority as to necessity for showing that defend- ant had knowledge of his disqualification ..... 587, 588 liability of person voting upon void certificate of naturaliza- tion 589,590 rule where qualification of voter is question of doubt . . 590-593 what constitutes the completed act of illegal voting . . 593, 594 liability of minor who votes believing he is of age .... 595 no conviction unless election was authorized by law . . 596, 597 construction of statute punishing the offense of voting " with- out being duly qualified " 538 character of question decided by election officer to be consid- ered 599,600 liability for fraudulently appointing illiterate inspector of election 599 distinction between discretionary and gitasi-judicial powers of election officers 600 mere irregularity in manner of conducting election no defense 601 advice of friends cannot be shown in defense 603 nor can a favorable decision by officers of election upon de- fendant's right to vote 602 requisites of an indictment for illegal voting 603 indictment must advise defendant definitely as to nature of charge against him 604, 605 not always sufficient to follow words of statute .... 606, 607 illustrations 606-614 case in Tennessee 606 in general, disqualifications must be specified .... 608, 613 not necessary to aver that election was held by the proper officers , 809 nor what particular officers were to be chosen at the election 610 officer not liable for mistake of judgment under statute of Pennsylvania 611 indictment for voting more than once at same election . . 613 must state where illegal vote was cast 614 presumption 615 advice of counsel 616 case in Massachusetts 617 burden of proof to show non-residence is upon the Common- wealth 618 defendant's statements at time of voting not admissible in evi- dence 619 PROXY, voting by, unknown at common law 660 but now generally recognized in corporate elections . . . 680 INDEX. 595 Q. Section. QUALIFICATIONS OF OFFICERS (see Election Officers), Federal officers 323 State officers 322, 323 Representatives in Congress 324 QUALIFICATIONS OF VOTERS (see Sovereignty), the right to fix the qualifications of voters is in the people of the respective States, subject to limitation contained in Fif- teenth Amendment 31 qualification of electors determined by the people in constitu- tional conventions 33 power to fix, vested in States 36 same for all elections 49 voters may be required by law to answer as to 50 usual, enumerated 65 meaning of word " inhabitants " 66 citizenship 66-68 effect of Treaty with Mexico upon status of inhabitants of ac- quired Territory 69 naturalization 70-83 power of Congress exclusive . 70 summary of laws •• 71 what courts may grant . 73-74 proceedings in court required 75 judgment final 76 how fact of, may be proved 77-79 who may be naturalized 80, 81 residence required 83 also good moral character 83 construction of act of Congress of April 14, 1803, as to rights of certain minors 84, 85 children born abroad whose parents are citizens 86 residence always required 87 defined 88 at United States navy yard, arsenal, or the like ... 89, 94 ofsoldiei-s 90,91 within Indian or military reservation 92, 93 change of 88,94,95 temporary removal from 96, 100 and domicile synonymous 97 of Students at college 101-103 Importance of the question of intention 108, 103 paupers abiding in a public almshouse 104 the intention to remain at a particular place . . • . 105 rules of evidence 106 696 INDEX. QUALIFICATIONS OF VOTERS (continued), Section. tax, payment of 107, 116, note mode of assessing 108,109,112,113 payment by agent 110 persons exempted from payment of .111 definition of phrase '• housekeepers and heads of families " .114 mental capacity required 115, 116 rule in Kentucky as to deaf mutes 117 Legislature cannot add to constitutional 347 presumption that voter possessed 467 want of naturalization, how established 468, 469 weight to be given to decisions of judges of election . . . 500 rule where doubt as to voter's 590-592 QUO WARRANTO (see Remedies), common-law jurisdiction 369 when issued at common law 39;J mode of proceeding 394 where statutory right of contest exists 39> not granted merely upon showing of illegal votes received . 393 and mandamus, remedy by 397-400 information in 425 returns may be impeached upon 50J R. RECORD (see Evidence), of naturalization, what to contain 79 RECOUNT, of ballots, application for ... . 485, 435a, 435&, 435c, 476, 477 REGISTRATION, laws for, constitutional 127-134 laws for, may operate only in certain cities and villages . . 128 validity of laws requiring registration prior to election . 130-132 provisions of registry law cannot be disregarded .... 135 denial of right of 136-138 mode of conducting 139 notice 139 change of place of 139 statutes prescribing mode of, generally directory .... 140 irregularities in, not to prejudice voter 140 proof required of unregistered voter 141 application of registry law to special elections 193 complete 370 of legal voter, may be compelled by mandamus 420 not conclusive of right 470 INDEX. 597 REGULATION, Section. must not impair constitutional rights 44-48 Legislature may provide 58 may require reasonable notice of election 58 but cannot unreasonably postpone or embarrass right of elector 58,59,60 limited to prescribing necessary and reasonable txiles ... 61 as to casting vote in case of tie 63 right to vote may be limited to males 63 may be extended to females 63 must be reasonable 126 must regulate, and not impair, the right to vote 126 registration laws constitutional 127-134 may operate only in certain cities and villages .... 128 distinction between regulation and subversion of right . 129 validity of acts requiring registration prior to day of elec- tion 130,131 conflicting decisions 132 weight of authority sustains validity of such acts . . . 132 all regulations must be reasonable 133 decision in Massachvisetts 134 provisions of registry law cannot be disregarded . . . 135 denial of right of registration 136-138 mode of conducting registration 139 notice 139 change of place 139 statutes prescribing mode of proceeding generally direct- ory 140 legal voter not prejudiced by irregularities 140 proof required of unregistered voter 141 nature and extent of power of Congress to prescribe regula- tions 143 constitutionality of enforcement act 143 ,144 implied power of Congress over Federal elections . . . 145, 146 statutory, necessary 147 of election of Senators in Congress 148, 149 mode of conducting such election «... 150 act of July 25, 1866 151, 153 time and place of all elections must be prescribed .... 153 invalidity of statutes authorizing a soldier to vote while ab- sent from his residence 153, 157 time and place are of the substance 176 notice 177-188 when the prescribed notice is necessary, and when not . 178-181 distinction between regular and special election as to notice required 183-185 598 INDEX. REGULATION (continued), Section, power of Governor to fix time and place of holding election for Representative in Congress 186 time and place of such election must be fixed by a competent authority 186, IS: power of military Governor 18 > eflfect of change in Congressional district 189, 190 validity of act of June 25, 1842 191 power of Congress to require election by districts . . . 191, 192 application of registry law to special elections 193 " general election," meaning of the phrase considered . . 194, 193 mode of conducting special elections 19G what questions may be submitted to popular rote .... 197 local-option laws 198-200 return of votes after time prescribed 201 effect of unconstitutional police regulations 240 REJECTION, of entire poll, rule asto 423, 424 REMEDY, quo warranto, common-law jurisdiction 369 mandamus to compel canvassers to determine and certify re- sult 384,385 no jurisdiction in equity to enjoin holding of an election . . 386 injunction not allowed to restrain counting of illegal votes . 387 but may issue to restrain the receipt of illegal votes . . . 388 will not lie to restrain recording of abstract of votes on ground of fraud 389 mandamus in State courts to compel canvass of votes cast for Representative in Congress 390 trial by jury not allowed 391, 392 quo warranto, when issued at common law 393 mode of proceeding 394 right of elector to contest, given by statute, does not oust ju- risdiction in quo warranto 395 quo warranto not granted merely upon showing that illegal votes have been received 396 discussion as to proper remedy in various cases .... 397-412 remedy by mandamus and by quo warranto 397-400 mandamtis to compel county officer to keep office at county seat 401 mandamus not granted when there is another adequate and specific remedy 402, 403 nor to oust the incumbent of an office 404 nor to control the performance of judicial duties . . . 405, 416 but is sometimes granted to compel swearing in of person elected 406 INDEX. 599 REMEDY (continued). Section, or to compel recognition of person adjudged elected . . 406, 409 will lie to compel discharge of purely ministerial duties . 406-411 mandamus to compel appointment in certain cases .... 410 also to compel canvass in accordance with original and gen- uine returns 412 no answer to writ to show that returns are irregular . . . 413 granting or refusal of writ discretionary with the court . . 414 office of the writ of mandamus 415 decision of board of canvassers conclusive on collateral pro- ceeding 417 csertificate of election issued under mandamus not conclu- sive 418,419 will lie to compel registration of legal voter 420 not generally issued to compel certificate showing election of particular person ••• 421 general rules stated 422, 423 for illegal corporate elections 671 REPRESENTATION, minority •••... 212 REPRESENTATIVES, election of, see Appendix, p. 541. State no power to fix qualifications of,. 826 RES ADJUDICATA, what not binding on Congress ........... 457o RESIDENCE (see Appendix, p. 557), a qualification for voting 87 defined 88 in United States navy yard, arsenal, or the like 89 of soldiers 00,91 within Indian or military reservation . 92, 93 change of 94, 95 temporary removal from 96-100 synonymous with domicile 97 of students in college 101-103 importance of question of intention 102, 103 of paupers in a public almshouse 104 of vagrants 104a intention to remain at a given place 105 evidence of declarations 106 laws authorizing voting while absent from, invalid . • . 153, 157 statements of voter as to, may be proven 21)8 abroad, representing the United States Government ^ . . 325 absence while discharging duties of pubUc office .... 334 character of, required 343 by statute in Maryland 96, note 600 INDEX. RESIGNATION, Section, acceptance of, not necessary 353 RETURN (see Impeachment), conclusive upon canvassers 2C2, 366 amending, under law of Massachusetts 371 and election papers may be impeached upon quo warranto . 503 parol evidence admissible to impeach 503 must be signed 508 held admissible for some purposes though unsigned . . . 509 canvass in accordance with original, may be compelled by man- damus 413 no answer to writ of mandamus to show irregularity in , , 413 correction of final, by reference to primary 513 absence of oath will not vitiate return 514 rule as to setting aside 515 illustrations 515-517 distinction between rejecting return and setting aside election 515 failure of oflBcers of one of several precincts to make . . . 532 proof of alteration of 526 return, if free from fraud, the best evidence; but may be im- peached 569, 570 nature of impeaching proof required 571 effect of rejecting return 571 fraudulent return must fall to the ground 571 dangers attending rejection of return 571 character of parol proof which may be admitted ... 673, 573 fraud by oflBcers and by other persons 574 circumstantial evidence tending to show fraud 675 effect of proof of fraud which does not change result . . . 576 check list as evidence 677 not necessary to show that oflBcers participated in fraud . . 578 evidence aliunde the return 578 what acts of election officers will constitute fraud .... 679 presence of unauthorized persons at the place of canvassing votes 580 return not rejected on account of illegal votes received if they did not change the majority 581 proof that vote cast was largely in excess of number of legal voters 583 other circumstantial evidence of fraud 683 fraudulent naturalization certificates .•• 584 REVOCATION, of commission .••••••••• 807 RIGHT TO VOTE (see Suffrage), cannot be impaired by regulations ......... 136 DTDBX. 601 s. SAMPLE BALLOTS, Sectton. printing and distribution of 710 voted by mistake, effect of..... 711 SENATORS, election of, see Appendix, p. 640. regulation of elections of • 148-150 vacancy in office of... 860 SENTENCE, when a disqualification 120 SHAREHOLDERS (see Stock), govern corporations 641 entitled to one vote for each share unless otherwise provided 643 qualifications for voting 643 interest of, no disqualification 648 limitation of this rule 643 rights of 644 right to vote not limited to natural persons 645 corporate transfer book as evidence of title 647, 648 rights and duties of trustees 649 contract of membership, when complete 650 meetings of, mode of conducting 651 notice of meeting .. 652 how given ■ , 653 may be by what 653, 654 mandamus to compel calling of meeting of 654, 655 adjournment of meeting of 657 validity of meeting held beyond bounds of State .... 658, 659 voting by proxy unknown at common law ...... 660 but now generally recognized 660 SOLDIERS, residence of 90,91 cannot be authorized to vote while absent from place of resi- dence 153,157 interference by 552 surrounding polls by 553 stationing same in vicinity of 654 stationed near voting place, misconduct of 555-557 calling out on election day 568 SOVEREIGNTY (see note 1, § 13), have the people, by constituting the electors, surrendered the sovereignty 24 602 INDEX. SOVEREIGNTY (continued), Section. view of Supreme Court of Pennsylvania in case of Wells v. Bain, to the effect that the sovereignty still resides in the entire citizenship 25 the same view expressed in Anderson v. Baker, by Supreme Court of Maryland 26 an investigation of the question from a practical standpoint 27 same subject continued 28 is the body politic sovereign only in theory, or is it also sov- ereign as a practical fact 29 same subject continued 30 the right to fix the qualifications of voters is in the people of the respective States, subject to limitation contained in Fif- teenth Amendment 31 qualifications of electors determined by the people in consti- tutional conventions 32 power of the people to limit the discretion of voters in the choice of persons to fill offices 33 inability of the people to withdraw political power, except in the manner provided by Constitution 34 exercise of the elective franchise by a portion of the commu- nity a fair and useful restriction 35 SPECIAL ELECTIONS. application of registry law ...» 193 mode of conducting ••... 196 STATE (see Foreign State), what constitutes 13, note 1 has power to fix qualifications of voters generally .... 36 has power to fix qualifications of voters for Presidential elect- ors 36 power of, to fix qualifications of voters limited by Fifteenth Amendment to the United States Constitution . . . . 36, 38 legislation of, may be supplemented by act of Congress . . 42 has not exclusive power to punish frauds in Federal elections 43 may limit right to vote to male citizens 63 naay also extend it to women 63 laws of, rules of decision in Congress 457, 461 statute regulating elections not binding on Congress . . . 519 tribunals, decisions of prima /acie evidence ...... 520 STATUTES, what are mandatory 227-229 and what are directory 227-229 relating to elections, construction of 243 mandatory 295-297 to be liberally construed 431 INDT«X. 608 STATUTES (continued), Section. of State, not binding upon Congress 519 importance of the subject 672, 673 evils of crowding the polling places 674 multiplication of voting precincts 675 complete registration 676 non-partisan election boards 677 presence of witnesses representing all parties 677 counting of votes without delay 678, 679 protection of voters against intimidation and violence . . 680 fraudulent ballots 681 regulation as to size and form of ballot ....... 681 summary of necessary provisions 682 existing statutes 683-689 act of Kansas Legislature to prevent crowding at the polls . 684 provisions against counting ballots so printed as to mislead voters 690 STOCK, equitable assignment of 645 qualification of rule that legal holder of may vote upon same 646 corporate transfer book as evidence of title 647, 648 STOCKHOLDERS (see Shareholders). SUFFRAGE (see Elective Franchise; Appendix, p. 531; Votb, THE Right to), defined • 1 the object of suffrage ..".... 2 the right to vote not of necessity connected with citizenship 3 suffrage not a natural right ^ 46, 54 the doctrine as stated in the case of Anderson v. Baker . . 5 as stated in the case of Blair v. Ridgely 6 the right to vote distinguished from the right to practice a profession or calling 7, 54, 55 electors may be disfranchised by constitutional provision . 8 the American and English theories of the right to vote distin- guished 9 in the United States the right of suffrage depends upon the will of the people 10 historical outline of, in the United States 8, note 7 right may be limited to male citizens 63 but may by constitutional provision, or sometimes by legislar tive act, be extended to females 63 but only upon same terms and conditions as are applied to males 63 and cannot be extended by statute to females when construct- ively limited to males by constitutional provision . . . 63a 604 IlfDEX. SUFFRAGE (continued), Section, construction of Fourteenth Amendment to the Constitution of the United States 64 in what States women may vote 64a Constitution of New Jersey of 1776 permitting famale suffrage 64b T. TAX, payment of as a qualification for voting 107, 110 mode of assessing 108, 10», 113, 113 payment by agent 110 persons exempted ...• Ill TENURE, of office 848-368 of office during good behavior 353 right to hearing before removal from office 354 commission of crime does not ipso facto vacate office . . . 354 power of removal 855 appointment or election to offioe creates no contract for any particular period • 868 of officers of corporation 670 TERRITORY, power of Congress to legislate for 45 foreign, acquired, organization of necessary to valid Federal election in 244 Federal election in, in anticipation of admission into Union . 245 State formed of part of, effect upon remainder • . * • . 246 TEST OATH (see Evidence), nature of, that may be required ••• 56 TIE, casting vote in case of • 62 deciding by lot 210, 211 TIME OF ELECTION, must be fixed by law •.. 153 is of the substance 176 adjournment • 160, 166 premature closing of polls 161 keeping polls open after lawful hours 162, 165 power of governor to fix, for election of Representative in Con- gresa 186 provisions of law affecting, generally mandatory . , . 228, 229 corporate election must be held at reasonable ..... 656 INDEX 605 TRIBUNALS, Section. special 369 office of Governor 369 jurisdiction of Legislature 870 mode of proceeding before legislative body 370 contestant not absolutely necessary 371 construction of acts of Congress regulating mode of proceed- ing 372 such acts directory only 373 certificate of election prima facie only 374 sitting member not entitled to vote 375, 376 jurisdiction of the House exclusive 877 jurisdiction of special tribunals 878 courts may compel them to act by mandamus 379 members thereof must be disinterested 379 power of legislative bodies to judge of the election and quali- fication «t their own members, when exclusive .... 380 jurisdiction of courts in absence of special provision of law . 381 such jurisdiction extends to a contest for the eflBce of Gov- ernor of a State 383 but not to control the Governor in the performance of oflBcial functions 383 u. UNITED STATES GOVERNMENT, power of, see Congress. power of self-protection ..•••••••••• 48 V. VACANCY, in office, see OrnCE. VAGRANTS, residence of ..••.••••••••••. 104a VERIFICATION, of grounds of contest •••••••. 838 VIOLATION, of election laws, see Prosecutions. VIOLENCE, effect of, towards election officers 241 fairness, purity and freedom of elections must not be inter- fered with 560 slight disturbances wil' not vitiate election . . , . , 550, 551 t>06 INDEX. VIOLENCE (continued), Section. rule stated ,... 551 interference by the military 553 surrounding polls by military force 553 stationing troops in the vicinity of the election 554 misconduct of soldiers stationed near voting place . . . 555-557 duty of House of Representatives to inquire into charges of intimidation . 558, 559 violence and intimidation affecting a part only of the district in which the election was held , , . . 560, 561 general rules upon the subject stated 562-564 it must be shown that the violence and intimidation affected result 565 evidence of intimidation 566 importance of preserving freedom of elections 567 calling out militia on election day 568 protection of voter against 680 VIVA VOCE VOTING, rights of deaf mutes ......••. 117 VOTE, THE RIGHT TO, suffrage defined 1 the object of suffrage 2 the right to vote not of necessity connected with citizenship . 3 suffrage not a natural right 4, 46, 54 the doctrine as stated in the case of Anderson v. Baker ... 5 as stated in the case of Blair v. Ridgely 6 the right to vote distinguished from the right to practice a profession or calling 7, 54, 55 electors may be disfranchised by constitutional provision . . 8 the American and English theories of the right to vote distin- guished 9 in the United States the right of suffrage depends upon the vrill of the people 10 who are the people 11 declarations upon the subject contained in the Declaration of Independence and in preambles to constitutions .... 1 the theories of early speakers and writers 13 conclusion from the foregoing 14 arguments of counsel in Chis'iolm, Ex'r, V. State of Georgia . 15 views of the Supreme Court of the United States in Penhallow r. Doane's Adm'rs 16 doctrine as stated by Judge Taney in Dred Scott v. Sanford . 17 at the time of the formation of the Union the people were the citizens, independent of age or sex 18 IXDBX. 607 VOTE, THE RIGHT TO (continued',, Section. how did the Constitution become binding upon the people . 19 the theory of consent by ratification 20 view of the Supreme Court of the United States in Inglis v. Trustees of Sailor's Snug Harbor 31 view of the same court in Ware v. Hylton 33 the provisions of constitutions binding upon all citizens, irre- spective of age or sex 33 have the people, by constituting the electors, surrendered the sovereignty 24 view of Supreme Court of Pennsylvania in case of Wells v. Bain, to the effect that the sovereignty still resides in the entire citizenship 25 the same view expressed in Anderson v. Baker, by Supreme Court of Maryland 26 an investigation of the question from a practical standpoint . 27 same subject continued 28 is the body politic sovereign only in theory, or is it also sover- eign as a practical fact 29 same subject continued 30 the right to fix the qualifications of voters is in the people of the respective States, subject to limitation contained in Fif- teenth Amendment 31 qualifications of electors determined by the people in constitu- tional conventions 33 power of the people to limit the discretion of voters in the choice of persons to fill offices 33 inability of the people to withdraw political power, except in the manner provided by Constitution 34 exercise of the elective franchise by a portion of the commu- nity a fair and useful restriction 35 "VOTERS (see Qualifications; Disqualifications), right to vote to be determined by reference to State law , . 36 qualifications fixed by States 36 not voting, generally bound by result 167-170 erroneous rule affecting class of 235 not prejudiced by mistakes of election officers .... 236-239 refusal to administer oath to 287 corrupt denial of riglit of 289 seasonable listing of names of 297 duty of, to furnish evidence as to his right 298 statements of, as to residence 298 registration of legal, may be compelled 4^0 when necessary to prove number of 463 proof of number of 463-466 608 INDEX. VOTERS (continued), Section. cannot be compelled to divulge for whom he voted . . . 489-491 not protected if an illegal 492-494 may waive his privilege 493 intent of, explained • 530, 531 VOTES, counting of illegal, cannot be enjoined 887 receipt of illegal, may be restrained 388 recording of abstract of cannot be restrained 389 disposition of illegal, in absence of proof showing for whom cast 495 when new election should be ordered 496 received and counted, what character of proof will vitiate . 499 proof of, by secondary evidence 513 rule as to proving, when return has been rejected .... 521 not necessary to show intentional wrong on the part of oflScer rejecting 527 offer to vote, when considered performance . 527a, 527&, 169, note presumption of legality 466a VOTING, right of, see Appendix; Cumxjlativb Voting; Suffeaqe; Elect- ive Franchise. in wrong precinct • 134 VOTING COMPARTMENTS 713 votes required to be prepared in 715 VOTING MACHINES, use of 728 how constructed and operated 729 VOTING PLACE, change of 158, 159 number of 284 fraudulent refusal to establish 285, 286 VOTING PRECINCTS (see Peecincts). w. WAGER, upon result of election 218, 219 WITNESS, power of legislative body over ....•••.. 637, 638 refusal of, to answer questions 639 WOMEN, right to vote .....•• 28 RETURN TO the circulation desk of any University of California Library or to tfie NORTHERN REGIONAL LIBRARY FACILITY BIdg. 400, Richmond Field Station University of California Richmond, CA 94804-4698 ALL BOOKS MAY BE RECALLED AFTER 7 DAYS ^^-month loans may be renewed by callina (510)642-6753 ^TNRLr ""^^ ^^ recharged by bringing books Renewals and recharges may be made 4 days pnor to due date ^ DUE AS STAMPED BELOW IEbjaml RECEIVED JAN 4 1995 Circulation dept. MAR Z 7 2003 L H 20,000 (4/94) LD 21.A-50m-3,'62 (C7037sl0)476B General Library University of California Berkeley YD 0169 UNIVERSITY OF CAUFORNIA LIBRARY •j^^H