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 atlewpt
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<e, §118.
CHAP. V.J DISQUALIFICATIONS OF VOTERS. 87
crime " punishable " by imprisonment in the penitentiary,
whether that punishment is actually inflicted or not, and
that the liability to punishment, rather than t he actual pun-
ishment administered, determines the question.^
But the opposite doctrine was laid down by the Supreme
Court of Nebraska in Qandy v. State^ and by the Supreme
Court of California in Peojple v. Cornell? In these latter
cases it is held that the punishment which the court, in the
exercise of its discretion, actually inflicts must determine
the question of disfranchisement under the statute.
§ 121. It has been held by the Supreme Court of the
United States that a crime punishable by imprisonment in
a State prison or penitentiary, with or without hard labor, is
an infamous crime within the provisions of the Fifth Amend-
ment of the Constitution, which provides that " no person
shall be held to answer for a capital or otherwise infamous
crime unless on a presentment or indictment of a grand
jury." * These cases lay down the rule that crimes are to be
regarded as infamous, within the meaning of said constitu-
tional provision, if they are such as are subject to an infa-
mous punishment, whether they are such as are in their
nature infamous or not ; and punishment hj imprisonment
in a penitentiary is held to be infamous punishment.
There were two kinds of infamy known to the law of Eng-
land before the Declaration of Independence ; one founded
in the opinions of the people respecting the mode of punish-
ment, and the other in the construction of law respecting the
future credibility of the delinquent. The infamy which at
common law disqualifies the convict to be a witness depended
upon the character of the crime, and not upon the nature of
the punishment. A conviction of such crimes as treason,
felony, forgery, perjury, bribery, etc., rendered the convict
1 United States v. Watkins, 7 Sawy., 85.
2 10 Neb., 243.
3 16 Cal., 187.
^Ex parte Wilson, 114 U. S., 417; Mackin v. United States, 117 U. S.,
S4d.
88 ELECTIONS. [chap. T.
incompetent to testify as a witness; but it was held that in-
competency to be a witness was not the only test for deter-
mining the application of the Fifth Amendment. How far
this ruling will be followed in the construction of State laws
providing for the disfranchisement of persons convicted of
infamous crimes remains to be seen. It is, however, believed
that, in the absence of any statutory definition of " infamous
crimes," it will be found most agreeable to the general un-
derstanding, both of the legal profession and of the people,
to hold that they are such only as are punishable by impris-
onment in the penitentiary — a punishment which by com-,
mon understanding is regarded as infamous. Such seems to
be the oiDinion prevalent in most of the States, as evidenced
by their statutes, for a large majority of them have adopted
statutes dividing all crimes into felonies and misdemeanors,
and providing for the punishment of persons guilty of the
former by imprisonment in the State prison or penitentiary.^
§ 122. By the 21st section of the act of Congress ap-
proved March 3, 1865, it was provided that, " in addition to
the other lawful penalties of the crime of desertion from the
military or naval service of the United States, all persons
who have deserted the military or naval service of the United
States, who shall not return to said service or report them-
selves to a Provost Marshal within sixty days after the proc-
lamation hereinafter mentioned, shall be deemed and taken
I See Mackin v. United States, 117 U. S,, 353. A statute of a State dis-
qualifying as a voter any person who has been convicted of an infamous
crime deemed by the laws of the State a felony does not deprive of the
right of suffrage a person who has been convicted in the courts ot the
United States of a mere statutory offense against the United States.
United States v. Barnabo, 14 Blatchf., 74. A conviction for a conspiracy
to commit an offense against the United States, created by the United
States Revised Statutes, Section 5440, is not a conviction of a felony such
as to disqualify the party convicted from voting as provided in the Ne-
braska Constitution, Article 8, Section 3. Gandy v. State, 10 Neb., 248.
[A conviction of a crime in a Federal Court has the effect to exclude
the person convicted from oflSce and suffrage in this State (Kentucky),
as if convicted in a court of this State of a crime against its statute.
A pardon by the President of the United States restores such a person
his rights. Cowan v. Prowse, 93 Ky., 157.]
CHAP, v.] DISQUALIFICATIONS OF VOTERS. 89
to have voluntarily relinquished and forfeited their rights of
citizenship, and their right to become citizens, and such de-
serters shall be forever incapable of holding any office of
trust or profit under the United States, or of exercising any
rigid of citizens thereof." The constitutionality of this act
was brought in question before the Supreme Court of Penn-
sylvania in the case of Hiiber v. JReily} The case was that
of a citizen whose vote was refused by the judge of elec-
tion, upon the ground that, having been regularly drafted,
he had failed and refused to report, and never did report for
muster.
It did not appear, nor was it alleged, that the person whose
vote was rejected had ever been tried or convicted upon the
charge of desertion. The officers of the election assumed
the right to consider and decide, upon such evidence as was
presented to them at the polls, the question of the voter's
guilt or innocence, and having tried that question in their
own way, and held the accused to be guilty, they refused his
vote. It is manifest that such a proceeding as this is open
to very grave objections aside from any questions as to its
constitutionality.
The constitutionality of the act was assailed upon these
grounds, viz. :
1. That it was an ex post facto law, imposing additional
punishment for an offense committed before its passage.
2. That it was an attempt on the part of Congress to reg-
ulate suffrage in the States, or to impair it.
3. That the act proposed to inflict pains and penalties
upon offenders without a trial and conviction by due process
of law, and that it was therefore prohibited by the bill of
rights.
Upon the first point it was held that the penalty of for-
feiture of citizenship imposed upon those who had deserted
the military or naval service prior to the passage of the act
was not a penalty for the original desertion, but for persist-
ence in the crime, and a refusal to report for muster and
153 Pa. St., 112; Bright Elec Cas., 69.
yO ELECTIONS. [chap. V.
duty when commanded so to do. Upon the second point the
Court held that the act was not an attempt to regulate suf-
frage in the States, but simply an exercise on the part of
Congress of its power to " deprive an individual of the op-
portunity to enjoy a right that belongs to him as a citizen of
a State," which was held to be a different thing from taking
away or impairing the right itself. The Federal Govern-
ment, in an exercise of its right to imprison a citizen of a
State for crime, or to impress him into the military service
and remove him from the State, may deprive him of the op-
portunity to vote ; and no doubt the forfeiture of citizenship
and of all its rights may be affixed as a penalty for the com-
mission of a crime against the United States.
Upon the third point the Court held that the act could
not be upheld as constitutional, if it did in fact impose pen-
alties before and without a trial by due process of law ; and
by due process of law is meant " the law of the particular
case administered by a judicial tribunal, authorized to ad-
judicate upon it;" and the Court say that "a judge of elec-
tions, or board of election officers, constituted under State
laws, is not such a tribunal." The Court, however, conclude
that the act of Congress was intended to apply, and does
apply, only to those cases of desertion in which there has
been a conviction by court-martial, and that thus construed
it is constitutional.^
§ 123. "Whether " a citizen has been guilty of an offense
forfeiting his right to vote " is necessarily a judicial ques-
tion which must be decided by the courts on a full and fair
trial on an indictment or a presentment by a grand jury, or
perhaps on information where that mode of proceeding is
authorized. That question cannot be rightfully adjudged
collaterally or incidentally by the officers of an election.^ It
has been held in Kentucky that a test oath cannot be con-
stitutionally required in such a case, and that the refusal to
1 To the same effect is State v. Symonds, 57 Me., 148.
2 [Garrison v. Mayo, Mob., 55.]
CHAP, v.] DISQUALIFICATIONS OF VOTERS. 91
take such an oath cannot be deemed a judicial trial and con-
viction of the imputed offense.^
§ 124. We have elsewhere seen ^ that the act of Congress
of March 3, 1865, denying rights of citizenship to deserters
from the army, must be held to apply to such persons only
as have been duly convicted of the crime of desertion. It
follows that, to exclude a person from voting upon this
ground, evidence must be produced before the proper offi-
cers holding the election that such person has been so con-
victed. It is the duty of such election officers to ascertain
who are citizens, not to adjudge and enforce forfeitures of
citizenship. In all cases where it appears that a person pos-
sesses the requisites as to birth or naturalization, age and
residence, of a voter, he must be presumed to be an elector
until the contrary is shown by the best evidence, which, in
the case of a conviction for crime, must be the record, or a
duly authenticated copy thereof.^
§ 125. A general and absolute pardon, granted by the
Governor of a State by virtue of power conferred upon him
to grant the same, relieves the person to whom it is granted
not only from the punishment provided by his sentence, but
from all the consequential disabilities of the judgment of
conviction, and restores such person to the full enjoyment
of his civil rights, including the right to vote.*
The constitutional provisions conferring upon the Execu-
tives of the several States the pardoning power are gen-
erally modeled after, and are analogous to, the provision in
the Constitution of the United States which empowers the
iBurkett v. McCarty, 10 Bush (Ky.), 758.
2 Ante, % 122.
3Goetchens r?. Matheson, 58 Barb., 152; 40 How. Pr., 97. See Burkett
V. McCarty, 10 Bush (Ky.), 758 [People v. Bell, 54 Hun, 567].
4 Wood V. Fitzgerald, 3 Oreg., 569; 4 Black. Comm., 402; 8 Bacon's Ab.,
Title Pardon; The People v. Pease, 3 Johna Cas., 333-4; In re Deming,
10 Johns., 233; Perkins v. Stevens, 24 Pick., 277; Ex parte Garland, 4
Wall, 333; United States v. Paddleford, 9 Wall., 531; United States v.
Klein, 13 Wall., 128; Carlisle v. United States, 16 Wall., 147; Knote v.
United States, 95 U. S., 149; Jones v. Board of Registers, 56 Miss., 768.
92 ELECTIONS. [chap. V.
President "to grant reprieves and pardons for offenses
against the United States, except in cases of impeachment." ^
In construing this provision in Ex jparte Garland^ aupra^ the
Supreme Court of the United States said :
" The power thus conferred is unlimited with the excep-
tion stated. It extends to every offense known to the law,
and may be exercised at any time after its commission, either
before legal proceedings are taken, or during their pendency,
or after conviction and judgment. This power of the Presi-
dent is not subject to legislative control. Congress can
neither limit the effect of his pardon nor exclude from its
exercise any class of offenders. The benign prerogative of
mercy reposed in him cannot be fettered by any legislative
restrictions. Such being the case, the inquiry arises as to
the effect and operation of a pardon, and on this point all
the authorities concur. A pardon reaches both the punish-
ment prescribed for the offense and the guilt of the offender ;
and when the pardon is full it releases the punishment and
blots out of existence the guilt, so that in the eye of the law
the offender is as innocent as if he had never committed the
offense."
iConst, Art.2, Sea2L
CHAPTER YI.
REGULATIONa
§ 136. Must be reasonable.
126. Must regulate, and not impair, the right to votOt
127-134. Registration laws constitutional
128. May operate only in certain cities and villages.
129. Distinction between regulation and subversion of rights
130, 131. Validity of acts requiring registration prior to day of elec-
tion.
182. Conflicting decisions.
182. Weight of authority sustains validity of such acta
133. All regulations must be reasonable.
134. Decision in Massachusetts.
135. Provisions of registry law cannot be disregarded.
136-138. Denial of right of registration.
139. Mode of conducting registration.
139. Notica
139. Change of place.
140. Statutes prescribing mode of proceeding generally directory.
140. Legal voter not prejudiced by irregularitiea
141. Proof required of unregistered voter.
142. Nature and extent of power of Congress to prescribe regulation!
143. 144. Constitutionality of Enforcement Act.
145, 146. Implied power of Congress over Federal elections.
§ 126. It is within the province of the Legislature to pre-
scribe reasonable rules and regulations for the conduct of
elections, including reasonable provisions for the registration
of voters.^ But it is manifest that under color of regulating
the mode of exercising the elective franchise, it is quite pos-
sible to subvert or injuriously restrain the right itself; and
a statute that clearly does either of these things must, of
course, be held invalid on the ground that it seeks to deprive
the citizen of his constitutional right.'
i[Slaymaker v. Phillips (Wyo.), 42 Pac. Rep., 1049; Com. Council of
Detroit v. Rush, 82 Mich., 532; State v. Old, 95 Tenn., 723.]
J [Mills V. Green, 67 Fed. Rep., 818; In re Appointment of Supervisors,
94 ELECTIONS. [chap. VI.
For example, a registry act Tvhich should undertake to re-
quire a longer residence prior to the time of voting than that
required by the Constitution,^ or which should require the
payment of taxes not required to be paid by constitutional
provision,^ or which should impose upon a particular class
of citizens conditions and requirements not required of all
others, or which should require all voters in the State to
register at the State capital, or which should impose any
other unreasonable, unjust and onerous conditions precedent
to the right to vote, would be void. The right to vote
must not be impaired by the regulation. It must be regu-
lation purely, and not destruction or substantial impairment
of the right.'
52 Fed. Rep., 254. While the Legislature of a State may prescribe an
official ballot and prohibit the use of any other, it cannot restrict an
elector to vote for some one of the candidates whose names have been
printed upon the official ballot. He must be left free to vote for whom
he pleases. This is a right guaranteed to him by the Constitution of
the State. State v. Dillon, 32 Fla., 545.]
1 [The statute which requires residents of a State who have been ab-
sent therefrom for six months or more to register ninety days before
the election is unconstitutional, as the Constitution of the State re-
quires a fixed residence of only sixty days in a coiinty and thirty days
in a precinct by persons otherwise qualified to vota Where the Con-
stitution of the State provides for the registration of "all persons en-
titled to vote," it is an implied prohibition against providing for the
registration of any one class or part of the voters, and an act of the
Legislature which provides for the registration of only such persons as
have been temporarily absent from the State for six months or more,
and such as have not resided in any one county for six months, is un-
constitutional Morris v. Powell, 125 Ind., 281. For a synopsis of the
constitutional and statute provisions of the several States respecting
registration, see note to Morris v. Powell, 29 Am. Law Keg., 872.]
2 [Bew V. State, 71 Miss., 1.]
» [Gooding v. Brown, 22 Fla,, 437; City of Madison v. Wade, 88 Ga., 699.
An act of the Legislature 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, including illit-
erates, to select and mark their own tickets with such assistance only
as the election officers may lawfully afford, is not in violation of the
provisions of the Fourteenth Amendment to the Constitution of the
United States, forbidding any State to make or enforce any law which
CHAP. VI.] EEGULATIONS. 9l5
§ 12Y. The power to provide for the orderly exercise of
the right of suffrage, which we have seen belongs to the
State Legislature, includes the power to enact registry laws,
and to prohibit from voting persons not registered,^ It is
now generally admitted that these laws do not add to the
constitutional qualifications of voters, and are therefore not
invalid.^
§ 128. An election and registration act which operates
only in such cities, villages or towns as may adopt it is not,
according to the ruling of the Supreme Court of Illinois,
therefore a local or special act, and, as such, violative of the
Constitution of that State forbidding the passage of such
acts.' A law is here held to be general if by its terms it
applies to all cities, towns and villages that may accept its
provisions. It is held to be enough if every person who
may be within the relations and circumstances described is
brought within its operation.*
§ 129. The rule above stated as a test of the constitution-
ality of a registration act, viz., that it shall provide for
regulation simply, and must not impair the constitutional
right of suffrage, is generally accepted as correct ; but some
difference of opinion has very naturally arisen upon the
will abridge the privileges or immunities of citizens of the United
States. The Legislature of the State has the organic authority for the
passage of such laws as will secure the purity of elections, and it can-
not be urged that such laws abridge the privileges or immunities of
the citizen. Cook v. State, 90 Tenn., 407.]
1 [Cowan V. Prowse, 93 Ky., 156.]
2Capen v. Foster, 12 Pick., 485; Bright. Elec. Cas., 51; Hawkins v.
Carroll Co., 50 Miss., 735; State v. Baker, 38 Wis., 71; Re Polling Lists,
13 R. L, 729; State v. Butts, 31 Kan., 537; McMahon v. Mayor, 66 Ga.,
217; S. C, 42 Am. Eep., 65; Patterson v. Barlow, 60 Pa. St., 54; People v.
Hoffman, 116 111., 587; S. C, 3 West. Rep., 522; [Appeal of Cusick, 136 Pa.
St., 439; In re Elect, of McDonough, 105 Pa. St., 488. See article on
constitutionality of registry laws, 28 Cent. Law J., 210].
3 People V. Hoffman, 116 111., 587; S. C, 3 West Rep., 522; [Common-
wealth V. McClelland, 83 Ky., 686].
*See, also, upon this subject, Guild v. Chicago, 83 IlL, 472; Town of
Fox V. Town of Kendall, 97 111., 72; Hundley v. Comm'rs, 67 111., 559;
State V. Butts, 31 Kan., 537.
90 ELECTIONS. [chap. VI.
question, what will amount to an impairment of that right?
How far may the Legislature go without passing the bound-
aries of reasonable regulation ?
The Bill of Eights of Illinois provides that " all elections
shall be free and equal." ^ In People v. Hoffman^ supra,
the Supreme Court of Illinois held that the declaration that
all elections must be equal does not necessarily mean that
there must be uniformity of regulation in regard thereto in
all portions of the State. Certain regulations may be pre-
scribed for the conduct of elections in cities and villages,
though they may have no application to the country places.*
§ 130. A question, of great practical importance and of
some difficulty has of late been much discussed in the courts,
and conflicting views have been expressed. It is this : Is
an act which denies the right to vote to all persons not reg-
istered on or before a fixed day prior to the day of election,
and which makes no provision for registration after the time
limited, so onerous and unreasonable as to be justly regarded
an impairment of the constitutional right to vote ? ' Accord-
ing to the great weight of authority, and of reason also, this
question must be answered in the negative, though the con-
trary doctrine has, as we shall presently see, been asserted.
The case of People v. Hoffman, supra, presents a full and
able discussion of this question. The statute of Illinois
then under consideration required registration to be com-
^ Const, of IlL, Art 2, Sec. 18. [The statute of Pennsylvania regulat-
ing the use of an official ballot is not in Tiolation of the constitu-
tional provision that all elections shall be free and equal, and that all
laws regulating elections shall be uniform throughout the State. De
Walt V. Bartley, 146 Pa. St., 529.]
2 [City of Owensboro v. Hickman, 90 Ky., 629; Commonwealth v.
McClelland, 83 Ky., 686. Where a registration law applies only to
cities and towns, and a city of the second class is within the limits of
an election precinct containing a number of voters residing outside
the corporate limits of the city, the country voters of the precinct
are entitled to vote at any polling place within the precinct without
having registered, even if such polling place is inside the city limits.
State V. Leavett, 33 Neb., 285.]
» lln re Smith, 3 N. Y. Sup., 107.]
CHAP. VI.] EEGULATIONS. 97
plete by the third Tuesday before the election, and it was
held to be constitutional, the Court saying:
" If it be admitted that the Legislature can require a voter
to establish his qualifications before election, it is difficult to
see why, upon principle or as a question of power, it cannot
require such proof to be made as well three weeks before the
day of voting as ten days, or five days, or even one day
prior thereto. The real question involved in the objection
is whether any man can be prevented from voting who
proves, or offers to prove, on the day on which he seeks to
cast his ballot, that he is a legal voter. If cases can be
supposed where the ' three weeks ' requirement will deprive
qualified electors of the privilege of depositing their votes,
cases can also be supposed where one day's requirement will
work the same result. This mode of reasoning, carried out
to its logical sequence, will make any kind of a registry law
unconstitutional. For it would be a physical impossibility
for the judges of election to receive the votes and make up
the registry at the same time and on the same day. If the
Legislature has the power to direct the registry to be com-
pleted before election day, and if, in its wisdom and under a
sense of its responsibility to th6 people, it has said that three
weeks before election is a reasonable date for the completion
of the registry, shall this court substitute its judgment for
that of the law-making power, and say that a shorter time
would have been more reasonable?
"'The moment a court ventures to substitute its own
judgment for that of the Legislature, in any case where the
Constitution has vested the Legislature with power over the
subject, that moment it enters upon a field where it is im-
possible to set limits to its authority and where its discretion
alone wiU measure the extent of its interference.' ^
" ' The judiciary cannot run a race of opinions upon
points of right reason and expediency with the law-making
power.' " '
1 Cooley, Const, lam., 168.
2 Id.
98 ELECTIONS. [chap. VI.
And after citing a number of oases in point, the Court
continues:
" If closing the registry three weeks before election may
deprive a few persons becoming qualified during that period
of the privilege of casting their ballots, keeping it open untQ
a late date may admit to the polls hundreds of persons who
should never have been allowed to vote. When the ballot-
box becomes the receptacle of fraudulent votes, the freedom
and equality of elections are destroyed. ' That election is
free and equal where all of the qualified electors of the
precinct are carefully distinguished from the unqualified,
and are protected in the right to deposit their ballots in
safety and unprejudiced by fraud. That election is not free
and equal where the true electors are not separated from the
false, where the ballot is not deposited in safety, or where
it is supplanted by fraud. It is therefore the duty of the
Legislature to secure freedom and equalty by such regula-
tions as wiU exclude the unqualified and allow the qualified
only to vote.'^ Where the law-making department of the
government, in the exercise of a discretion not prohibited
by the Constitution, has declared that a certain period of time
is needed for a specified investigation, it is not the duty of
this court to declare that such period is unreasonably long."
The authorities cited in note below sustain the doctrine
of the Supreme Court of Illinois upholding the constitution-
ality of an act requiring registration to be completed on a
day named prior to the election.'
§ 131. A^ide from the great weight to be given to the
authorities which support the rule above laid down, the rea-
sons upon which it rests seem to be strong and satisfactory.
The purpose of all such legislation is to ascertain beforehand,
by proper proof, who are entitled to vote and who should on
the day of election be permitted to exercise that right ; and
it is obvious that any fair, just and reasonable provision
» Patterson v. Barlow, 60 Pa. St, 54
^Capen v. Foster, 13 Pick., 485; Re Polling Lists, 13 R L, 729; State
V. Butts, 31 Kan., 537; Patterson v. Barlow, 60 Pa. St, 54.
CHAP. VI.] EEGULATI0N8. 99
for determining these questions in advance should be upheld,
" Eequiring a party to be registered," says Brewer, Judge,
in State v. Butts, sujpra, " is not in any true sense imposing
an additional qualification, any more than requiring a voter
to go to a specific place for the purpose of voting; or to
require him to prove by his own oath or the oaths of other
parties his right to vote when challenged ; or than requiring
a naturalized foreigner to present his naturalization papers.
Each and all of these are simply matters of proof — steps to
be taken in order to ascertain who are and who are not en-
titled to vote."
It also seems apparent that the duty of considering all
questions of qualification — of determining who are legal vot-
ers — can be discharged by a suitable tribunal with greater
care, deliberation and propriety under a law which requires
that the registration shall be completed before the day of
election than under one which requires such questions to be
considered and determined in the hurry and confusion at-
tending the conduct of the election at the polls. There is
nothing in the Constitution of any of the States which gives
to a citizen the right to have his qualifications considered
and determined on the day of election and not at any time
prior thereto.
§ 132. The leading case upon this subject is undoubtedly
that of Capen v. Foster, supra, in which the question was
exhaustively considered by Chief Justice Shaw, and the con-
clusion established that an act which requires registration
prior to the day of election is constitutional. The same
opinion is strongly expressed by Judge Cooley in his Con-
stitutional Limitations.^
The opposite view has, however, been expressed by the
Supreme Court of "Wisconsin in Bell v. Kennedy^ by the
Supreme Court of Ohio in Daggett v. Hudson^ and by the
Supreme Court of Oregon in White v. County of Midt-
1 5th Ed., p. 756.
249 Wis., 555.
»43 Ohio St, 548; S, C, 1 West Rep,, 789.
100 ELECTIONS. [chap. VL
nomahy In the first named case there was a strong dis-
senting opinion by Taylor, J., and in the last by Thayer, J.
In the case of Daggett v. Hudson much stress is laid upon
the fact that by the Constitutions of many States registra-
tion laws are either authorized or required to be enacted.
The inference is drawn that in those States where the Con-
stitutions are silent upon the subject the power to enact
such a statute as we are now considering does not exist.
But it is to be observed that the Constitution of no State
defines the character of the registration law which may be
enacted, or provides that registration prior to the day of
election may or not be required. It is believed that no case
goes so far as to deny the power of the Legislature of a
State to pass a registration act, when the Constitution is
silent upon the subject. This being so, the question we are
considering is not affected by the presence or absence of a
constitutional provision authorizing the Legislature to pass
such an act. The power exists in either case, and in either
case the question must be the same, viz. : whether the act
when passed merely regulates the exercise of the right to
vote, or goes further and impairs it.
§ 133. The rule which governs in determining the ques-
tion of the validity of a registration act must, we think, be
the same which determines the validity of any other act re-
lating to the subject of the regulation of elections. Thus,
for example, it is of course clear that the right to vote given
by the Constitution is subject to the power of the Legisla-
ture of the State to prescribe reasonable regulations respect-
ing the time, place and manner of exercising that power.
The Legislature may fix the time, but it must be a reason-
able time,; and if such a time be fixed as to exclude from
the right of voting any portion of the electors, the act would
doubtless be held void. It is likewise true that the Legisla-
ture may fix the places at which the right of suffrage is to
be exercised ; but the places must not be so fixed as to nee-
1 13 Oreg., 317. [The same view has been adopted by the Supreme
Court of Nebraska. State v. Corner, 32 Neb., 265.]
CHAP. VI.] KEGULATIONS. 101
essarily exclude any of the electors from exercising their
rights. In other words, whether legislation of the State
relates to registration, to time, to place, or to any other mat-
ter respecting the mode of determining the qualifications of
voters or of conducting the elections, the power of the Leg-
islature is limited to the prescribing of such regulations as
do not substantially impair the constitutional privileges of
citizens.^
§ 134. A recent decision of the Supreme Judicial Court
of Massachusetts affords an apt illustration of the true dis-
tinction between a statute which provides for a regulation
of the exercise of the right to vote and which is therefore
valid, and one which imposes an unreasonable restriction or
burden upon the exercise of such right and must therefore
be held void. The Constitution of that State gives the right
to vote upon certain conditions to all male citizens " who
have resided within the Commonwealth one year and within
the town or district in which he may claim a right to vote
six calendar months preceding any election," etc. By an
act of the Legislature adopted in 1885, it was provided that
" no person hereafter naturalized in any court shall be en-
titled to be registered as a voter within thirty days of such
naturalization." The question arose as to the constitution-
ality of this statute, and it was held to be unconstitutional,
as imposing an additional and unreasonable requirement not
warranted by the Constitution. The Court, by Devens, J.,
said:
" The plaintiff, according to the allegations of his declara-
tion, possessed, when he offered himself for registration, all
the qualifications of a voter required by the Constitution.
Any legislation by which the exercise of his rights is post-
poned diminishes them, and must be unconstitutional, unless
it can be defended on the ground that it is reasonable and
necessary in order that the rights of others (which are to be
protected as well as his own) be guarded against the danger
of illegal voting."
1 Monroe v. Collins, 17 Ohio, 665.
102 ELECTIONS. [chap. VI.
And after showing that the right to prescribe reasonable
regulations includes the right to provide by registration laws
for ascertaining the qualifications of voters in advance of the
day of election, the learned judge proceeded to show that
the statute in question did not fall within this class of acts,
and in concluding the opinion said :
" The regulation which it assumes to make is partial and
calculated injuriously to restrain and impede in the exercise
of their rights the class to whom it applies, in that it denies
them for the period of thirty days the exercise of a right
which the Constitution has conferred upon them. There is
no warrant for this within the just and constitutional limits
of the legislative power which permits reasonable and uni-
form regulations to be made as to the time and mode of ex-
ercising the right of suffrage, and as to the ascertainment of
the qualifications of voters." ^
§ 135. It being conceded that the power to enact a regis-
try law is within the power to regulate the exercise of the
elective franchise and preserve the purity of the ballot, it
follows that an election held in disregard of the provisions
of a registry law must be held void.'^ In Ensworth v. AXbin^
an election was set aside upon the ground that there was no
registration whatever, although the statute required registra-
tion as an indispensable prerequisite to an election.* It has
been suggested that this doctrine puts it in the power of the
board of registration to defeat an election by failing to meet,
iKineen v. Wells (1887), 144 Masa, 497. [See, also, McLean v. Broad-
head, minority report. Mob., 388. In Miller v. Elliot, the House of Rep-
resentatives declared the registration law of South Carolina unconsti-
tutional because unreasonable and restrictive of the right to vote. Row.,
504]
2 [State V. Scarboro, 110 N. C, 233; Smith v. Board County Commis-
sioners, 45 Fed. Rep., 725; Piatt v. Good, Smith, 650.]
3 44 Mo., 347.
* [The Supreme Court of the State of Washington has held, however,
that the failure of the Legislature of that State to make provision for
registration in accordance with a requirement of the State Constitu-
tution will not operate to invalidate an election held without such reg-
istration. Stallcup V. Tacoma, 13 Waah., 14L]
CHAP. VI.] KEGULATI0N8. 103
and refusing altogether to discharge their official duties.
But it is hardly safe to attempt to test the validity of a
statute by presupposing a case so extreme and so improbable
as the refusal of a sworn officer of the law to act. Should
such a case occur, of course a mandamus would lie to compel
the recusant officer to discharge his duties, and severe penal-
ties ought to, and it is believed generally do, follow any such
failure to discharge an official duty so grave and important.'
Upon this point the Supreme Court of Missouri, in the
case referred to, say : " "We are referred to no case where
a law has been held unconstitutional for the reason that the
officers required to execute it had neglected their duty, or
abused their trust, nor are we aware of any principle on
which to base such a decision." ^
§ 136. A case may occur where a portion of the legal
voters have, without their fault, and in spite of due diligence
on their part, been denied the privilege of registration. In
such a case, if the voter was otherwise qualified, and is
clearly shown to have performed all the acts required of him
by the law, and to have been denied registration by the
wrongful act of the registering officer, it would seem a very
unjust thing to deny him the right to vote.' In elections for
State officers, however, under a Constitution or statute which
imperatively requires registration as a qualification for vot-
ing, it may be that the voter's only remedy would be found
in an action against the registering officer for damages.*
Where, however, a portion of the voters of a given pre-
cinct are thus unjustly denied the privilege of registration,
and another portion are duly registered and permitted to
1 See chapters on Duties and Liability of OflBcers of Election.
2 See to the same effect, Nefzger v. Railroad Co., 36 la., 642; Zeiter t\
Chapman, 54 Mo., 502.
3 [Stinson v. Sweeney, 17 Nev., 309; Sessinghaus v. Frost, 2 Ells., 381.]
* People V. Koppelkam, 16 Mich., 342; State v. Stumpf, 23 Wis., 630;
State V. Hilmantel, 21 Wis., 566. An irregularity in the registration of
voters or in holding an election will not deprive the electors of their
rights or render the election invalid, unless it is shown that it would
have changed the result. Barnes v. Supervisors, 51 Miss., 305.
104: ELECTIONS. [CHAP. VI.
vote, no doubt is entertained but that the entire poll should
be rejected, if the votes of the former class cannot be counted,
and if they are sufficiently numerous to affect the result.
§ 137. In the absence of any positive law making regis-
tration imperative as a qualification for voting, it is a very
plain proposition that the wrongful refusal of a registering
officer to register a legal voter who has complied with the
law, and applies for registration, ought not to disfranchise
such voter. The offer to register in such a case is equiva-
lent to registration. This would be held to be the law upon
the well-settled principle that the offer to perform an act
which depends for its performance upon the action of an-
other person, who wrongfully refuses to act, is equivalent
to its performance. The Congress of the United States has,
however, provided against injustice of this kind by a posi-
tive statute, which must, of course, control all Federal elec-
tions. By the third section of the Act of May 31, 1870,^ it
is provided as follows :
" That whenever, by or under the authority of the Con-
stitution or laws of any State, or the laws of any Territory,
any act is or shall be required to be done by any citizen as
a prerequisite to qualify or entitle him to vote, the offer of
any such citizen to perform the act required to be done as
aforesaid shall, if it fail to be carried into execution by rea-
son of the wrongful act or omission of the person or officer
charged with the duty of receiving or permitting such per-
formance, or offer to perform, or acting thereon, be deemed
and held as a performance in law of such act, and the per-
son so offering and failing as aforesaid, and being otherwise
qualified, shall be entitled to vote in the same manner and
to the same extent as if he had in fact performed such act."
It is undoubtedly necessary that a person who, having
been refused registration, seeks to have his vote counted
under this statute, should prove that he actually and person-
ally applied to the proper board or officer for registration,
» 16 Stat at Large, p. 140.
CHAP. VI.] KEGULATIONS.
105
and offered to make such proof, or perform such acts, as the
law required of him ; that he was in fact legally qualified
to vote and entitled to registration, and that registration
was refused. In other words, it must appear that the voter
did, or offered to do, all that the law required at his hands,
and that his failure to be registered was the fault of the
board or officer of registration.^ Nor is it enough that he
demanded registration of the proper officer or board and
was refused. It must also appear, before his vote can be
counted as if cast, that he offered his vote at the proper
time and place, or used proper diligence in endeavoring to
do so.'
§ 138. The statute of Michigan of 1851 provided that
" if any person offering to vote shall be challenged as un-
qualified, etc., the chairman of the board of inspectors shall
declare to the person so challenged the constitutional quali-
fications of an elector," after which, if he insists upon his
right to vote, the inspectors are required to tender him the
statutory oath. Subsequently, in 1859, the Legislature of
the same State passed a registry law which, among other
things, provided " that the vote of no person shall be re-
ceived whose name is not registered." Under these two
statutes it was held that the inspectors were not bound to
administer the oath to an unregistered voter, though he de-
manded it.'
§ 139. Eegistration must be made at the time and in the
manner substantially as prescribed by the statute.*
It is also in general essential to the validity of a registra-
tion that it be conducted at the place fixed in the notice
given ; but it has been held that where notice was given by
a registrar that the registration of voters would take place
at his residence, and where he kept the books and actually
registered the voters at his store some three hundred yards
1 [State V. Scarborough, 110 N. C, 232.]
2[Pos«, Sec. 162.]
3 People V. Wattles, 13 Mich., 446.
* State V. Commissioners, 20 Fla., 859,
106 ELECTIONS. [chap. VI.
distant, he having left word at the house for persons apply-
ing there to come to the store, the irregularity did not vitiate
the registration or the election held under it.^
The rule is undoubtedly the same in such cases as that
which prevails respecting the place of holding an election.
The removal to another place near by, of which all the
voters have due notice, and upon which they act, is not fatal.
But the removal to a place some distance away, of which
sufficient notice is not given, and by means of which a por-
tion of the electors are deprived of their rights, will render
the registration void.
§ 140. The provisions of the registration act, in so far as
they direct the mode of proceeding in the matter of regis-
tration, are generally to be regarded as directory, and not as
mandatory.^ It is not to be presumed that the Legislature
in prescribing the mode of proceeding intended to make the
right to vote of persons whose names are on the registers
depend upon the observance by the registration officers of
all the minute directions respecting the preparation of the
list of registered voters. To consider such provisions as
mandatory would render the constitutional right of suffrage
liable to be defeated without fault of the elector by the
fraud, caprice or negligence of the inspectors.^ The same
doctrine is strongly asserted in State v. Baker and State v.
Kromer} It is held that the voters are not bound to super-
vise the process of registration, or to see to the correction
of irregularities and defects in the proceedings of the regis-
tration board. Although such supervision is authorized, it
is merely voluntary and is not imposed as a duty or as a
burthen on the right of suffrage. It was accordingly laid
1 Newsom v. Eamheart, 86 N. C, 391.
2 [Campbell v. Weaver, Mob., 455. The House of Representatives of
Congress, in case of Curtin v. Yocum, 1 Ells., 416, declared the registra-
tion laws of the State of Pennsylvania to be directory merely. The
Supreme Court of Pennsylvania, however, in the ease of Cusick's Ap-
peal, 136 Pa. St., 459, has pronounced these laws to be mandatory.]
» People V. Wilson, 62 N. Y. 186; reversing Same Case. 3 Hun, 437.
< 38 Wis., 71.
OHAP. VI.] EEGULATIONS. 107
down in those cases that voters whose names are on the
register de facto used by the inspectors at the election as
official and valid need not inquire further. " They may ac-
cept the registers de facto as they accept the inspectors de
facto; and they are no more bound to inquire into the quali-
fications de jure of the registers than into the qualifications
de jure of the inspectors. It is enough for voters to find at
the election acting inspectors using actual registers, virtute
officii. They need look no further to see if their votes be
challenged by statute. A statute cannot challenge them
without notice. Their constitutional right cannot be baffled
by latent official failure or defect ; and the registry law sets
no such trap — authorizes none such — for the constitutional
right which it was passed to protect."
§ 141. Where the registry act requires that a voter who
has not been registered shall, before being permitted to vote,
make proof by his own oath and that of a householder and
registered voter that he is an inhabitant of the district in
which he offers to vote, the election officers are not required
to accept any other or different proof, or to act upon their
own knowledge in the premises.^
§ 142. We have thus far considered for the most part
regulations established by State legislation. It remains to
consider to what extent Congress is authorized to prescribe
1 Byler v. Asher, 47 111., 101; [Appeal of Cusick, 136 Pa. St., 459; Mid-
dendorf s Case, 4 Pa. Dist. R., 78. Nor have they any power to waive
statutory proofs. In re Election of McDonough, 105 Pa. St, 488. But
if the oflBcers of an election permit a person to vote who has not reg-
istered and without any proof of right, and it does not appear that he
was challenged or any objections made to his vote, the presumption
must be that he was a legal voter. Lowe v. Wheeler, 2 Ells., 61 ; Perry
V. Ryan, 68 111., 172; Dale v. Irwin, 78 III, 171; Clark u Robinson, 88 IlL,
498. For a contrary rule, see In re Election of McDonough, supra. It
was held by the House of Representatives of Congress, in case of Camp-
bell V. Weaver, Mob., 455, that where an elector, acting in good faith,
and honestly supposing himself to be registered, deposits his vote and
the same is received by the judges, it is a valid vote. But where the
elector does not act in good faith, and knows he is not registered, his
vote should be rejected].
108 ELECTIONS. [chap. VI.
such regulations, bearing in mind that except where the
paramount authority of Congress intervenes, the whole sub-
ject is committed to the States. The jurisdiction of Congress
in the premises is derived from its implied power to guard
the purity and freedom of all elections of members of any
department of the Federal government, and from Section 4,
Article 1, of the Constitution, which declares that "the times,
places and manner of holding elections for Senators and Rep-
resentatives shall be prescribed in each State by the Legis-
lature thereof; but the Congress may at any time, by law,
make or alter such regulations, except as to the places of
choosing Senators." This clause of the Constitution came
before the Supreme Court of the United States for construc-
tion in the case of Ex jparte Siebold,' and it was upon full
consideration held that Congress has power at any time to
alter or add to such regulations as may have been prescribed
by the State without taking into its hands the exclusive or
complete control of the whole subject. It was held that
Congress has a supervisory power, and may either make, by
entire new regulations, or add to, alter or modify the regu-
lations made by the State.^ The Court, construing the con-
stitutional provision, said:
" It seems to us that the natural sense of these words is
the contrary of that assumed by the counsel of the petition-
1 100 U. S., 371.
2 [By the act of February 2, 1872 (R S. U. S., Sec 25), it is provided that
the Tuesday after the first Monday in November, 1876, 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 Con-
gress; and that the Tuesday next after the first Monday in November
in every second year thereafter is established as the day for the elec-
tion in each of said States and Territories of Representatives and Dele-
gates to Congress, commencing on the 4th day of March thereafter.
The power to thus regulate the time for the election of members of the
House of Representatives is vested, as has been shown, in Congress, by
the provisions of Article 1, Section 4, of the Federal Constitution. By
Section 6 of the act of March 8, 1875, Section 25 is modified so as not to
apply to any State whose Constitution must be amended in order to
effect a change in the day of election of State officers in such Stata In
CHAP. VI.] KEGULATIONS. 109
ers. After first authorizing the States to prescribe the regu-
lations, it is added, * The Congress may at any time, by law,
7naJce or alter such regulations.' ''Make or alter^ "What is
the plain meaning of these words ? If not under the prepos-
session of some abstract theory of the relations between the
State and JSTational governments, we should not have any
difficulty in understanding them. There is no declaration
that the regulations shall be made either wholly by the State
Legislatures or wholly by Congress. If Congress does not
interfere, of course they may be made wholly by the State ;
but if it chooses to interfere, there is nothing in the words
to prevent its doing so, either wholly or partially. On the
contrary, their necessary implication is that it may do either.
It may either make the regulations, or it may alter them.
If it only alters, leaving, as manifest convenience requires,
the general organization of the polls to the State, there
results a necessary co-operation of the two governments in
regulating the subject. But no repugnance in the system of
regulations can arise thence ; for the power of Congress over
the subject is paramount. It may be exercised as and when
Congress sees fit to exercise it. When exercised, the action
of Congress, so far as it extends and conflicts with the reg-
ulations of the State, necessarily supersedes them. This is
implied in the power to ' make or alter.'
"Suppose the Constitution of a State should say, *The
first Legislature elected under this Constitution may by law
the case of Patterson v. Belford, 1 Ells., 52, it was held that the provis-
ions of Section 25 were not repealed by the enabling act for Colorado,
except as to the election of the first Representatives from that State,
and that the time for the election of all subsequent Representatives for
Colorado was fixed by said statute. In Holmes v. Wilson, 1 Ells., 322, it
was decided that said section, by reason of the amendment of March
3, 1875, did not apply to elections in the State of Iowa. It was the opin-
ion of the majority of the committee in the latter case that the Fed-
eral statute would not apply in a State whose Constitution had fixed
the date of the election of any State officer, and that it was not neces-
sary that the Constitution should fix the day for the election of every
State officer in order to except the State from the operation of the
said statute.]
110 ELECTIONS. . [chap. VI.
regulate the election of members of the two houses ; but any
subsequent Legislature may make or alter such regulations,' —
could not a subsequent Legislature modify the regulations
made by the first Legislature without making an entirely new
set ? Would it be obliged to go over the whole subject anew ?
Manifestly not ; it could alter or modify, add or subtract, in
its discretion. The greater power, of making wholly new
regulations, would include the lesser, of only altering or
modifying the old. The new law, if contrary or repugnant
to the old, would so far, and so far only, take its place. If
consistent with it, both would stand. The objection so often
repeated, that such an application of Congressional regula-
tions to those previously made by a State would produce a
clashing of jurisdictions and a conflict of rules, loses sight of
the fact that the regulations made by Congress are para-
mount to those made by the State Legislature ; and if they
conflict therewith, the latter, so far as the conflict extends,
cease to be operative. ISTo clashing can possibly arise. There
is not the slightest difficulty in a harmonious combination
into one system of the regulations made by the two sover-
eignties, any more than there is in the case of prior and sub-
sequent enactments of the same Legislature."
§ 14:3. It was accordingly held that Congress had power
by the Constitution to enact Section 5515 of the Revised
Statutes, which makes it a penal offense against the United
States for any officer of election, at an election held for a
Representative in Congress, to neglect to perform or to vio-
late any duty in regard to such election, whether required by
a law of the State or of the United States, or knowingly to
do any act unauthorized by any such law, with intent to af-
fect such election, or to make a fraudulent certificate of the
result, etc. Also that Congress had power to enact Section
5522 of the Revised Statutes, which makes it a penal offense
for any officer or other person, with or without process, to
obstruct, hinder, prohibit or interfere with a supervisor of
election, or marshal, or deputy marshal, in the performance
of any duty required of them by any law of the United
CHAP. VI.] EEQULATIONS. Ill
States, or to prevent their free attendance at the places of
registration or election. It was also held that the several
sections of the Eevised Statutes authorizing the circuit
courts to appoint supervisors of such elections, and the
marshals to appoint special deputies to aid and assist them,
and prescribing the duties of such supervisors and deputy
marshals, were constitutional and valid.^
§ 144. The Court in the same case^ considered the ques-
tion of the constitutionality of the provision of the Enforce-
ment Act which authorizes deputy marshals to keep the
peace at the polls, and held the same to be valid. The
National Government has the right to use physical force in
any part of the United States to compel obedience to its
laws, and to carry into execution the powers conferred upon
it by the Constitution. Counsel had earnestly contended
that Congress could not constitutionally compel said officers
of an election to observe such State laws of election as were
not altered by Congress; but the court overruled the point,
and held that the duties to be performed by State officers of
1 See, also, United States v. Nicholson, 3 Woods, C. C, 215. [Sections
5515, 5520 and 5522, together with all other sections providing for the
appointment of supervisors of elections and of deputy marshals to serve
at elections, were abolished by act of Congress, February 8, 1894 The
power of Congress to provide for the punishment of any State officer
of elections who shall, at an election held for choosing a Representative
in Congress, violate a State statute regulating his duties, was again rec-
ognized in Ex parte Coy, 127 U. S., 731. It is there held that the authority
of Congress to protect the poll-books which contain the vote for a Mem-
ber of Congress, from the danger which might arise from the exposure of
these papers to the chance of falsification or other tampering, is beyond
question. And a conspiracy to induce the officers of the election hav-
ing charge of such poll-books to deliver them to persons who have no
authority to receive them may be punished by indictment in the Fed-
eral Court, under the provisions of sections 5440, 5511, 5512 and 5515 of
Revised Statutes of the United States. And it was further held that
it makes no difference that the intent may have been to defraud some
person or persons who were candidates for State offices. The report of
the same case in the United States Circuit Court may be found in 31
Fed. Rep., 794.]
2 [Ex parte Siebold.]
112 ELECTIONS. [chap. VI.
election in connection with the election of Representatives in
Congress were duties due to the United States as well as to
the State, and that their violation is an offense against the
United States, which Congress may rightly inhibit and
punish. This, as the Court held, necessarily follows from
the direct interest which the National Government has in the
due election of its Representatives, and from the power
which the Constitution gives to Congress over this particu-
lar subject.^ And the same doctrine was laid down in Ex
parte Clark,2in which case the judgment of the Circuit Court
of the United States, whereby an officer of election had been
convicted, under Section 5515 of the Revised Statutes of the
United States, for a violation of the law of Ohio in not
conveying the ballot-box, after it had been sealed and deliv-
ered to him for that purpose, to the count};^ clerk, and for
allowing it to be broken open, was affirmed.'
§ 145. Such is the law as finally determined by the Su-
preme Court respecting the power of Congress to regulate
Federal elections, in so far as that power is derived from the
express grant found in Section 4, Article 1, of the Constitu-
tion. It remains to consider the nature and extent of the
implied power of Congress in the premises, growing out of
its right and duty to provide for the fairness and purity of
the election of Senators and Representatives in Congress, and
electors for President and Yice-President. This subject has
also been fully considered by the Supreme Court in the case
of Ex parte Yarbrough.* In that case the rule is laid down
that, in construing the Constitution of the United States, the
doctrine that what is implied is as much a part of the in-
strument as what is expressed is a necessity by reason of
the inherent inability to put all derivative powers into
1 [Under the provisions of the Enforcement Act deputy United States
marshals had no authority to mark ballots nor to see them marked.
Attorney-General v. Mars, 99 Mich., 538.]
2 100 U. S., 399.
' [Upon the right of the Federal courts to punish offenders against
the ballot-box, see 29 Am. Law Reg., 337.]
* 110 U. S., 651.
CHAP. VI.] EEGULATIONS. 113
words. And speaking of the general power of Congress to
enact laws for the regulation of Federal elections, the Court
said:
" That a government whose essential character is republi-
can, whose executive head and legislative bod}'- are both
elective, whose most numerous and powerful branch of the
Legislature is elected by the people directly, has no power
by appropriate laws to secure this election from the influence
of violence, of corruption, and of fraud, is a proposition so
startling as to arrest attention and demand the gravest con-
sideration.
" If this government is anything more than a mere aggre-
gation of delegated agents of other States and governments,
each of which is superior to the general government, it must
have the power to protect the elections on which its exist-
ence depends from violence and corruption.
" If it has not this power, it is left helpless before the two
great natural and historical enemies of all republics — open
violence and insidious corruption.
" The proposition that if it has no such power is supported
by the old argument, often heard, often repeated, and in this
court never assented to, that, when a question of the power
of Congress arises, the advocate of the power must be able to
place his finger on words which expressly grant it. The
brief of counsel before us, though directed to the authority
of that body to pass criminal laws, uses the same language.
Because there is no express power to provide for preventing
violence exercised on the voter as a means of controlling his
vote, no such law can be enacted. It destroys at one blow,
in construing the Constitution of the United States, the doc-
trine universally applied to all instruments of writing, that
what is implied is as much a part of the instrument as what
is expressed. This principle, in its application to the Con-
stitution of the United States, more than to almost any other
writing, is a necessity, by reason of the inherent inability to
put into words all derivative powers — a difficulty which the
instrument itself recognizes by conferring on Congress the
8
114 ELECTIONS. [OHAP. VT.
anthoritj to pass all laws necessary and proper to carry into
execution the powers expressly granted and all other powers
vested in the government or any branch of it by the Con-
stitution.^
" We know of no express authority to pass laws to punish
theft or burglary of the treasury of the United States. Is
there therefore no power in Congress to protect the treasury
by punishing such theft and burglary ?
" Are the mails of the United States and the money car-
ried in them to be left to the mercy of robbers and of thieves
who may handle the mail because the Constitution contains
no express words of power in Congress to enact laws for the
punishment of those offenses? The principle, if sound,
would abolish the entire criminal jurisdiction of the courts
of the United States and the laws which confer that juris-
diction."
§ 146. It was accordingly held that Section 5508 of the
Revised Statutes, which provides for the punishment of per-
sons guilty of conspiracies formed for the purpose of depriv-
ing any citizen of any right or privilege secured to him by
the Constitution or laws of the United States ; and Section
5520, which provides for the punishment of conspiracies
formed for the purpose of preventing by force, intimidation
or threat any citizen who is lawfully entitled to vote from
giving his support or advocacy in a legal manner toward or
in favor of the election of any qualified person as an elector
for President or Yice-President, or as a member of the Con-
gress of the United States, or to injure any citizen in person
or property on account of such support or advocacy, are con-
stitutional and valid.
1 Art 1, Sec. 8, Clause X8L
CHAPTER YII.
REGULATIONS — Continued.
§ 147. Statutory regulation necessary.
148, 149. Regulation of election of Senators in Congress
150. Mode of conducting such election.
151, 152. Act of July 25, 1866.
153. Time and place of all elections must be prescribed.
153-157. Invalidity of statutes authorizing a soldier to vote while
absent from his residence.
158, 159. Change of voting place.
160, 166. Adjournment of election.
161. Premature closing of polls.
162-165. Keeping polls open after lawful hours.
167. Persons not voting generally bound by resxilt
168-170. Exceptions to this rule.
171. Fraudulent organization of election board.
172. Irregular reception of legal votes.
173, 174. Mode of voting where separate boxes are provided by law
for State officers and members of Congress.
175. Voting by proxy unknown at common law, but allowed in cer-
tain corporate elections.
176. Time and place are of the substance.
177-188. Notice.
178-181. "When the prescribed notice is necessary and when not
183-185. Distinction between regular and special election as to no-
tice required.
188. Power of Governor to fix time and place of holding election for
Representative in Congress.
186, 187. Time and place of such election vanst be fixed by a compe>
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<gresses. Such are the terms of the
act, and such must alsc be its spirit. A vacancy in the
House of Representatives is the occurrence of an event by
which a portion of the people are left unrepresented, and the
filling of that vacancy H directed by the Constitution in such
explicit language as f^quires no aid from State enactments
to perfect the right. The second section of the first article
of the Constitution certains the following provision : " When
vacancies occur in tfae representation from any State, the
executive authority thereof shall issue writs of election to
fill such vacancies." This is the only provision of law on
the subject of vacan-^Jes, and it is ample and sufiicient. No
act of the Legislatuve of New Hampshire purports to inter-
fere in the matter,, and the act of July ought not, in our be-
lief, to be understood as requiring the vacancy occasioned
by General Wilsoa's resignation to be filled by any other
people than those whose Representative he was. Had such
been the purpose of the act, we believe it was incompetent
for the law-making power of that State to accomplish the
object while this House hold the right to judge of the elec-
tion of its members.
" ' It would not be preservation of the purity of the elective
franchise, nor would it be a just guardianship of the repub-
lican principle that all shall have a right to be represented,
to admit the power of a State Legislature to provide that a
portion of the people should have two Representatives in
Congress, while another portion should have none, or not be
represented by the man of their choice. * * * It is,
OHLAJP. VII.] REGULATIONS. 143
besides, in disregard of the law of Congress of June, 1842,
which declares that no one district shall be entitled to two
Representatives. If the people who choose a Eepresentative
are not entitled to fill the vacancy happening by his resigna-
tion, it is impossible to tell what portion of the population
may most properly exercise this privilege. It seems to be
assumed in this case that the new district made by the act
of July 11, 1850, and numbered three, has the right to send
a Representative in place of General Wilson, because the
number corresponds with that which General "Wilson repre-
sented. But the order of numbering is an unimportant cir-
cumstance, and the first or the fourth district might have
been as properly called the third as any other ; yet it would
be a strange assertion that, on this account, such district
would be authorized to have two Representatives during the
remainder of the Thirty-first Congress.'
" This reasoning, which your committee consider as sound
and pertinent, applied to the case under consideration seems
to be conclusive against this election ; and it may also be
added that whatever power a State Legislature may have in
the matter, it is absurd to say that a district, when once es-
tablished and a Representative chosen therein, is not to con-
tinue for the whole Congress for which the election has
once been operative. No election to fill the vacancy caused
by the death of Mr. Mann appears to have been notified or
held in the whole of said district as represented by him." *
§ 191. A question of great importance arose in the
Twenty-eighth Congress, as to the constitutionality of the
second section of " An act for the apportionment of Repre-
1 [In Pool V. Skinner, Mob., 65, it was held that under the Constitution
of the United States the Governor of a State is the tribunal to deter-
mine when and where to hold an election to fill a vacancy, and that
the House of Representatives will not interfere with his actions. Con-
sequently, when the Governor of North Carolina designated in the writ
of election the counties in the new district entitled to vote to fill a
vacancy occasioned by the death of a member elected from the old dis-
trict, the House of Representatives acquiesced in the Governor's action
without inquiring into its correctnesa]
144: ELECTIONS. [CHAP. VH.
sentatives among the several States, according to the sixth
census," approved June 25, 1842. That section provided as
follows :
" That in each case where a State is entitled to more than
one Representative, the number to which such State shall be
entitled under this apportionment shall be elected hy dis-
tricts composed of contiguous territory y'' etc.
The laws in force in many of the States prior to the pas-
sage of this act provided for the election of Representatives
upon a general ticket, to be voted for by the people of the
State at large ; and the States of New Hampshire, Georgia,
Mississippi and Missouri refused to change their system in
obedience to the act of Congress, and elected their Represent-
atives to the Twenty-eighth Congress in the old way, by a
general ticket. The question was as to the power of Congress
to abrogate a State law providing for an election of Repre-
sentatives upon a general ticket, and to require the State to di-
vide its territory into districts, and to choose Representatives
by districts ; and the decision of this question depended upon
the construction of the fourth section of the first article of
the Constitution of the United States, which is in these
words :
" The times, places and manner of holding elections for
Senators and Representatives shall be prescribed in each State
by the Legislature thereof, but the Congress may, at any
time, by law, make or alter such regulations, except as to
the places of choosing Senators."
The majority of the Committee of Elections held the sec-
ond section of the apportionment act above quoted to be
unconstitutional and void, and this view was ably supported
in an elaborate report submitted by Hon. Stephen A. Doug-
las of Illinois.* But the contrary view was maintained with
scarcely less ability, and, in the opinion of the writer of this
treatise, with better logic, by the minority of the commi^
tee, whose views were presented by Hon. Garrett Davis of
1 1 Bart, 47-5&
CHAP. VII.] KEGULATIONS. 146
Kentucky.^ The House did not pass upon the resolutions
submitted by the committee, but the members who had
been elected in disregard of the act of Congress, upon a
general ticket, were allowed to serve out their time. It
seems quite clear that the Constitution confers upon Con-
gress power:
1. To make regulations concerning the time, place and
manner of holding elections for Representatives. This power
can be exercised, and was doubtless intended to be exercised,
in the absence of any regulations by the State Legislature,
but the language of the Constitution does not permit us to
say that it can only be exercised in the absence of State
regulations.
2. To alter such regulations as may have been prescribed
by the States concerning the time, place and manner of hold-
ing such elections. This power is legitimately exercised
when a regulation requiring Representatives to be chosen
by the people of a State at large is so altered as to require
that such Representatives be chosen by districts.^
§ 192. The House of Representatives, however, in the
more recent case of Phelps and Cavanaugh of Minnesota,^
followed the ruling of the majority of the committee in the
case last cited, and held that the election of those members
by the State at large in disregard of the act of Congress
was valid. The weight of authority, so far as the action
of the House is concerned, is therefore in favor of this view,
and yet it is manifest that these rulings have been influ-
enced largely by the consideration that to have decided the
other way would have left States for the time being unrep-
resented.
§ 193. A statute providing for a special election to be
called on ten days' notice will be construed as not coming
Nvithin the provisions of a previously enacted registry law,
lid., 55-69.
2 Such is the effect of the rulings of the Supreme Court of the United
States in Ex parte Siebold, 100 U. S., 371, and Ex parte Clark, Id., 399.
3 1 Bart., 24a
10
146 ELECTIONS. [chap. VH.
for the reason that it would be impossible to make the reg-
istry, give the statutory notice and revise the lists within
ten days. Such at least was the ruling in Illinois in the
case of People v. Ohio Grove^ and it is probable that under
the provisions of none of the registry acts in this country
could a registration be legally perfected within so short a
period. Of course where a registry act is by its terms to
be applied to all elections by the people, it must be applied
to an election subsequently authorized, unless the act au-
thorizing such subsequent election contains provisions which
make it impracticable so to apply it, in which case the sub-
sequent act must stand and be held as modifj'^ing the regis-
tration act.
§ 194. It sometimes happens that a statute is passed pro-
viding that a particular officer named shall be chosen each
year " at the general election," without further provision
as to the time. In most, and it is presumed in all the States,
the time for holding the general election is fixed by a con-
stitutional provision, and there can be no room for doubt
but that a statute fixing the election of an officer " at the
general election " should be construed to mean on whatever
day the proper authority may fix as the day for that election.
And hence if, after the passage of such an act, the time for
holding the general election is changed, the time for holding
the election of the particular officer named would be changed
with it. The purpose of selecting the day of the general
election in such cases is not to select a particular day of the
month or year, but to provide for the convenience of the
people by holding one instead of several elections.*
§ 195. A different rule prevails, however, where a statute
provides that an election shall occur on a given day of the
month every year, or in given years, even though the day is
also described as the day of the general election. Thus, for
example, a statute of Illinois provided that certain commis-
151111,191.
2 See West Virginia Cases, 43d Congress [Smith, 108]. Also Sawyer
V. Haydon, 1 Nev., 75.
CHAP. Vir.] EBGTJLATIONS. 147
sioners should be elected "at the next general election, on
the lirst Monday in August, 1874, and every year thereafter,"
and it was held that the change of the time for holding the
general election did not change the time for the annual elec-
tion of said commissioners. In the former case the statute
should be construed as fixing the day of the general election,
and not a particular day of the month; but in the latter, the
])articular day of the month and week in each year being
specified, it must be presumed that the term " general elec-
tion " was used as descriptive of the election, the time of
holding which was fixed " on the first Monday in August "
in each year.^
§ 196. Where a statute authorizes an election to be held
by a county, city or township for the purpose of determin-
ing a given question — as, for example, whether such munici-
pality shall subscribe to the stock of a railroad company —
and where such statute points out no mode for conducting
such election, it has been held that it should be conducted in
the manner prescribed by law for other elections by the
same bodj'^. For example, if an election in a township is
held for such a purpose under a statute silent as to the man-
mer of proceeding, it should be held in the manner town-
ship elections are required to be held, in the election of their
town officers, and not under the general election laws of the
State.2 The doctrine of this case is that where the Legislar
ture authorizes a township or other corporate body to hold
an election, and has prescribed no mode, it is to be presumed
that it was designed to authorize it to be conducted in the
manner usually adopted and authorized by the law govern-
ing the action of the body.
§ 197. There has been of late years much earnest dis-
cussion in the courts of this country as to what questions
may be submitted to a popular vote. It is a well-settled
principle that legislative power cannot be delegated or trans-
ferred from the Legislature to the people at large. Our gov-
1 People V. Sloan, 14 111., 476.
2 People V. Dutoher, 56 111., 144.
148 ELECTIONS. [chap. VII.
ernments are republican and not democratic. Laws must be
enacted by the representatives of the people, and not by
the people themselves. Nor can any State change this.
Every State must have a "republican form of govern-
ment,"— this is the requirement of the ISTational Constitu-
tion, and it is complied with only by that form of State
government which vests the law-making power in the rep-
resentatives of the people.^
§ 198. While the correctness of the general rule above
stated is not questioned by any of the authorities, there is a
conflict among them as to its application to a species of
legislation now becoming very common in this country. In
several of the States acts have been passed to confer upon
the voters of cities or municipalities the power to decide, by
ballot, whether the sale of intoxicating liquors shall be
licensed or not. In several of the cases above cited, acts of
this character are held to be unconstitutional and void.
Such was the ruling in the cases cited from Delaware,
Pennsylvania and Iowa, and they were afterwards followed
by the Supreme Courts of Indiana ^ and California;^ but
later decisions in Pennsylvania and Indiana are the other
way,* and such laws are generally upheld in the other States.*
In the latter State, however, the decision is put, partly,
upon the ground that all laws are required by the Constitu-
tion to " have a uniform operation," and, inasmuch as some
towns or cities might adopt license, and others vote it down,
the operation of the law was held not to be uniform. But,
iRice V. Foster, 4 Harr. (Del.), 479; S. C, Bright Elec. Cas., 3; Parker
V. Commonwealth, 6 Pa. St, 507; Barto v. Himrod, 8 N. Y., 483; Cincin
nati, etc., R. R. Co. v. Commissioners, 1 Ohio St, 77, 84; Geebrick v.
State, 5 la., 491. See, also, authorities cited in note to case of Rice v.
Foster, Briglit Elec. Caa, 24
2 Maize v. State, 4 Ind., 342.
^ Ex parte Wall, 48 CaL, 279.
♦Locke's Appeal, 72 Pa. St, 491; a C, 18 Am. Rep., 716; Groesoh r.
State, 42 Ind., 547.
•For citation of authorities supporting the validity of local-option
laws, see Cooley's Const Lim. (5th Ed.), p. 148, note 8.
CHAP. VII,] REGULATIONS. 149
on the other hand, there are decisions holding laws of this
character to be valid. Of this class are the cases cited below.'
§ 199. These cases proceed upon the theory that the legis-
lation referred to does not vest the law-making power in the
people at large, but only confers upon cities or municipali-
ties such powers as may properly be conferred by legisla-
tive act. It is enough to say here that in every case the real
question is, does the act in question attempt to confer upon
the people at large the power to make laws, or the power to
say whether or not an act of the Legislature shall have the
force of law? If it does plainly attempt to do this, it is
null and void. Upon this general subject the reader is re-
ferred to the authorities below in addition to those already
cited.2
§ 200. An examination of all the cases will show that
the rule as established by the great weight of authority and
reason is this : In any case where the Legislature could au-
thorize a municipality to adopt a particular measure as a
local police regulation, it may enact such a regulation sub-
ject to the adoption or rejection thereof by the people of the
several municipalities in the State. Judge Cooley expresses
the rule thus:
" Such laws are known in common parlance as local-op-
tion laws. They relate to subjects which, like the retailing
of intoxicating drinks, or the running at large of cattle in
the highways, may be differently regarded in different locali-
ties, and they are sustained on what seems to us the impreg-
nable ground that the subject, though not embraced within
the ordinary power of the municipalities to make by-laws
and ordinances, is nevertheless within the class of police
regulations in respect to which it is proper that the local
judgment should control." •
1 Hammond v. Haines, 25 Md., 541; State v. Noyes, 10 Fost. (N. H.),
279; State v. O'Neall, 24 Wis., 149.
2 State V. Morris, Common Pleas, Am. Law Reg. (N. S.), Vol. 12, page
32; State v. Parker, 26 Vt., 357. See, also, an able discussion of the sub-
ject in American Law Register (N. S.), Vol. 12, page 129.
» Cooley's Const. Lim. (5th Ed.), p. 148.
150 ELECTIONS. [chap. TII.
§ 201. In the case of Brockenhrov^h v. Cabell,^ it was held
that where the State law required votes given for a Repre-
sentative in Congress to be returned to the Secretary of
State within thirty days from the day of the election, the
statute was directory only, and that legal votes returned by
the proper oflBcers after that day should be counted. The
same rule has been laid down in many cases presenting
kindred questions, and the point is well settled .'^ In the
case last cited it was distinctly held that, inasmuch as the
House is made, by the Constitution, the exclusive judge of
the election and returns, as well as of the qualifications of
its own members, the returns from the State authorities
must be regarded 2i^ prima facie evidence only of what they
contain, and are not conclusive on the House.
And in Mallary v. Merrill ' it was held that votes fairly
given to a party may be counted in his favor, though they
ha/oe never heen returned to the proper State authorities, the
failure to make such return not being chargeable upon such
party.
This is the true rule as applied to the trial of contested
election cases, but, of course, has no application to the mere
matter of canvassing votes by election officers, as such offi-
cers must be governed by the returns. And it should also
be understood that votes cast, but not returned, must be
clearly proven by evidence other than the return before
they can be counted even by a tribunal trying a contest.
§ 202. As will be seen in another connection, a certifi-
cate of election which shows that it is based upon a partial
canvass is fataUy defective, because a full canvass might
show a different result.* A similar rule is sometimes applied
to the return from a county which embraces a number of
precincts or voting places. Thus, in Niblack v. WaUa^ a
1 1 Bart, 79.
2§§ 225, 282; Case of John Richards, CL & EL, 95; Spaulding v. Mead,
CL & H., 157.
» Id., 328.
♦§272.
»42d Congress fSmith, 101].
CHAP. Vn.] KEGULA.TIONS. 151
eounty return was rejected because the county canvassers
rejected the votes of three precincts, and counted that of two
only. Each party was required to prove his vote by evidence
other than the return.
§ 203. In most of the States the law requires that county
returns shall be forwarded to the Secretary of State by mail.
The question has been raised whether under such a statute
a return can be received and counted if sent by private con-
veyance. In Nihlack v. Walls ^ the return from one of the
counties which should have been sent by mail was not only
forwarded by private conveyance, but was addressed to, and
received by, one of the candidates, and by him handed to the
Secretary of State. Under these circumstances, the House
ordered further evidence to be produced to show the true
state of the poll. And in Chavis v. Clever ^ it appeared that
the statute required returns to be sent to the Secretary of
State " by special messenger." This provision of the statute
was violated, and the return delivered to one Moore, an
army sutler, and by him sent, hy express, to the Governor of
the Territory, who delivered it to the Secretary. These
facts, together with some evidence tending to show that the
return was tampered with on the way, were deemed suffi-
cient to exclude it. If, however, it be made to appear on
the trial of a contested election case that a return which has
been sent in an irregular and unlawful Avay has not been
tampered with, but is in fact the genuine return without al-
teration or amendment, duly signed and certified, it will not
be rejected because of its irregular transmission. It is the
policy of the law to discountenance everything which af-
fords an opportunity for evil-disposed persons to tamper
with ballot-boxes or returns, and for this reason the sound
rule would probably be to require proof of the genuineness
of all such returns as are transmitted through private and
unauthorized channels.'
1 42d Congress [Smith, 101].
2 2 Bart., 467, 469.
3 [The statute of Massachusetts required the presiding oflBcer at the
152 ELECTIONS. [chap. vn.
§ 204. Where the statute directed the returns of an elec-
tion for Kepresentatives in Congress to be filed with the
county judge, and an abstract forwarded to the Secretary of
State, and the county officers, mistaking their duty, forwarded
the original returns to the Secretary of State, it was held
that this did not vitiate the election, or furnish proper
ground for throwing out the vote of the entire county. In
the absence of fraud, an irregularity of this character not
affecting the result in any way cannot be regarded as suffi-
cient cause for rejecting the vote of a county or even of a
voting precinct.^ The statute in question clearly belonged
to that class of statutory provisions concerning the conduct
of elections which are directory merely.
§ 205. The failure or refusal of the proper officer to issue
a certificate of election to a person duly elected to an office
cannot operate to deprive such person of his rights. The
certificate or commission is the best but not the only evi-
dence of an election, and, if that be refused, secondary evi-
dence is admissible.^ Where, therefore, the Governor of
Tennessee, claiming that the State had seceded from the
Union, refused to certify the result of an election for Rep-
resentatives in the Congress of the United States, it was held
that other proof of such election was admissible, and that
the House being satisfied from such proof that claimant was
elected, he should be admitted.'
§ 206. In the absence of any statutory provision expressly
requiring more, a plurality of the votes cast will elect. It
election to immediately, after the ballots were counted, transmit them
by the constable in attendance at the election to the city clerk. In
Abbot V. Frost, Smith, 594, the ballots were placed in the hands of a
police officer and were by him turned over to a night watchman, who
held them untU the morning after the election, when they were again
returned to the police officer, and were by him delivered to the city
clerk. No effort was made to show that the ballots were not tampered
with while thus in the possession of authorized persons. Held, that the
vote must be excluded.]
1 Bennett v. Chapman, 1 Bart., 204. See, also, Clark v. Hall, Id., 215.
2 Richard's Case, CL & H., 95, 97, 166.
» Clement's Case, 1 Bart., 366.
CHAP. Vn.] KEGULATI0N8. 153
is only in cases where the statute so provides that a majority
of all the votes cast is necessary to the choice of an officer.
In this country, where candidates may be numerous, and the
votes of the electors divided among a number of different
persons, to require a majority to elect would be to prevent
a choice in very many cases ; hence it is that a majority is
seldom required in a popular election.^ In those States
where a majority is required to elect (and such is the re-
quirement in Vermont and perhaps in a few other States),
provision is made by statute for a second election in case
there is no choice at the first.
§ 207. Under Article 1, Section 2, Constitution of the
United States, which requires each State to appoint Presi-
dential electors at proper times in such manner as the Leg-
islature thereof may direct, the State Legislature may law-
fully enact that a plurality of the electors voting shall be
sufficient to elect a Presidential elector.'^
§ 208. "Where a statute requires a question to be decided
or an officer to be chosen by the votes of " a majority of the
voters of a county," this does not require that a majority of
all persons in the county entitled to vote shall actually vote
affirmatively, but only that the result shall be decided by
1 Augustin V. Eggleston, 12 La. Ann., 366; Cooley's Const. Lim., 619,
630.
2 In re Plurality Elections (R L), 8 Atl. Rep., 881; 15 R L, 617. [In
Rhode Island the Constitution provided that in all elections held by the
people under this Constitution, " a majority of all the electors voting
shall be necessary to the election of the person voted for." In Re Plu-
rality Elections, supra, the query was, could the election of a Represent-
ative to Congress be called one " under this Constitution " so as to
necessitate a majority election to such oflftce? The court held that it
could not, or, if it could, then the provision was void as being in conflict
with Section 4, Article 1, of the Constitution of the United States; for
it " would assume to impose a restraint upon the power of prescribing
the manner of holding elections which is given to the Legislature by
the Constitution of the United States without restraint, so long as and
to the extent that Congress refrains from making regulations in the
same matter." The Constitution of Rhode Island was changed in 1895
and a plurality is now suflScient to elect in that State.]
154 ELECTIONS. [chap. vn.
the majority of the votes cast, provided always that there
is a fair election and an equal opportunity for all to partici-
pate. In such a case the only proper test of the number of
persons entitled to vote is the result of the election as deter-
mined by the ballot-box, and the courts will not go outside
of that to inquire whether there were other persons entitled
to vote who did not do so. The " voters of the county " re-
ferred to by all such statutes are necessarily the voters who
vote at the election, since the result in each case must be de-
termined by a count of the ballots cast and not by an inquiry
as to the number not cast. This doctrine is well settled by
the authorities.^
§ 209. When the Constitution refers a question to popu-
lar vote to be determined by " a majority of the legal voters
of the county voting at a general election," the requirement
calls for the majority of those who vote on any ticket, nom-
ination or question at that election, not merely a majority
of those who vote on the particular question presented.
Where a question of township organization was submitted
at an election at which about two thousand five hundred
votes were cast for officers, but many did not vote at all on
the township question, so that the vote on that stood nine
hundred in favor to six hundred against. Held^ that the
requisite majority was not obtained.'
1 People V. Warfield, 20 111., 163; People v. Garner, 47 III, 246; People
v. Wiant, 48 111., 263; Railroad Co. v. Davidson Co., 1 Sneed, 692; Angell
& Ames on Corp. (9th ed.), sees. 499, 500; Bridgeport v. Railroad, 15
Conn., 475; Talbot v. Dent, 9 B. Mon., 526; State v. Mayor, 37 Mo., 270-
272; St. Joseph Township v. Rogers, 16 Wall., 644 And see County v.
Johnson, 5 Otto, 369, where it is held that all qualified voters wha
absent themselves from an election duly called are presumed to assent
to the expressed will of the majority of those voting, unless the law
providing for the election otherwise declares. See, also, to the same
effect, Everett v. Smith, 22 Minn., 53; [Tester v. City of Seattle, 1 Wash.
St., 308; Richardson v. McReynolds, 114 Ma, 641; State v. Barnes, 3 N.
Dak., 319].
2 State V. Commissioners, 6 Neb., 474; [State v. Bechel, 23 Neb., 158;
State V. Babcock, 17 Neb., 188; People v. Wiatt, 48 111., 263: State v.
Winkelmeir, 35 Mo., 103. But see Walker v. Oswald, 68 Md., 146; Sam»
OHAP. Vn.] KEGULATIONS. 165
§ 210. Where the Constitution prohibited counties and
cities from incurring certain debts except upon " a vote of
the majority of the qualified voters therein," it was held by
the Supreme Court of I^orth Carolina that the term " quali-
fied voters " refers to the class of persons whose competency
to vote has been passed upon in their admission to registra-
tion, and that such persons as have been lawfully registered
constitute the qualified voters of a given county. In such a
case, as was further held, a mere majority of the votes actu-
ally cast is not sufficient.^
Case with note, 27 Am. Law Reg., 509, where it is held that the adoi>-
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.
<Tuckej V. Aikin, 7 N. H., 140.
8 Hall V. Gavitt, 18 Ind., 390.
8Alvord V. Collins, 20 Pick., 428. And see note to State v. Collier,
Am, Law Reg. (N. S.), voL 18, p. 768; Neal v. Shinn, 49 Ark., 227, 4
S. W. Rep., 771; Wells v. Taylor, 3 Montana, 202; & C, 3 Pao. Rep., 255.
CHAP. VII.] KEGULATIONS. 165
§ 218. It is now well settled that a wager upon the re-
sult of an election is wholly void as being contrary to public
policy, and that no action can be maintained for its recovery.^
In a few of the older English cases actions upon wagers were
allowed to be maintained.^ In none of these early cases,
however, was the question of the immoral tendency of such
transactions raised or considered.' The more recent decis-
ions in Great Britain show a great desire and tendency, on
the part of the judges, to get rid of the rule thus inadver-
tently adopted by their predecessors, and they show how
much the more enlightened jurists of a later period have
been trammeled by it. They have endeavored to make a dis-
tinction between those wagers the subject-matter of which
is perfectly innocent, and those in which it is not ; and they
seek to apply the early decisions sustaining the validity of a
wager to those cases where the subject-matter is of the
former kind. But they forget that it is the wager itself
which is immoral, and can never be innocent, and that, there-
fore, the subject-matter of the bet can make no difference
in its moral quality.
§ 219. But in this country the decisions are uniform, and
all adverse to the validity of any bet or wager of any kind or
character whatever.* In Lansing v. Lansing^ cited in note 4,
the court held that if the loser had given his negotiable note
for the amount of the wager the invalidity of the contract
was a good defense against the indorsee of the note. But in
that case the indorsee of the note took it with notice, and
the question as to the rights of an innocent purchaser of such
paper is not considered. Where the amount of the wager
has been deposited with a third party as stakeholder, an
1 Loyal V. Myers, 1 Bailey, 486.
2 Andrews v. Heme, 1 Lev., 38; Da CJosta v. Jones, Cowp., 729; Lord
March v. Pegot, 5 Burr., 2803.
3 16 East, 158; Id., 162.
*Bunn V. Riker, 4 Johns., 426; Lansing v. Lansing, 8 Id., 454; Visoher
V. Yates, 11 Id., 23; Smyth v. McMasters, 2 P. A. Browne, 182.
166 ELECTIONS. [chap. YII.
action will lie against him by the loser to recover back the
amount of the deposit.^
In Illinois it is held that, if a negotiable note be given for
an illegal wager, the illegality of the consideration is no de-
fense to a suit by an indorsee for value.^ And there seems
to be no reason to doubt the correctness of these decisions.
§ 220. The principles of public policy, which forbid and
make void all contracts tending to the corruption of elec-
tions held under authority of law, apply equally to what are
called primary or nominating elections, or conventions, al-
though these are mere voluntary proceedings of the voters
of certain political parties. It is quite as much against pub-
lic policy to permit contracts to be made for the purpose
of corrupting a convention or primary election as to permit
the same thing to be done to corrupt voters at a regular
election. The buying and selling of votes or of influence
at a nominating convention or election is quite as injurious
to the public, and quite as abhorrent to the law, as the same
corrupt practices when employed to influence an election
provided for by statute. The too common practice of pro-
viding liquors to be used to influeuoe voters in a convention,
primary election, or regular legal election, is a practice which
the law will not tolerate. A contract made for such a pur-
pose is utterly void.^
§ 221. In Nichols v. Mudgett * the following were the
facts: The defendant being indebted to plaintiff, who was
1 Visoher v. Yates, supra. See, also, Johnson v. Russell, 37 Cal., 670;
Reynolds v. McKinney, 4 Kan.. 94; Jennings v. Reynolds, Id., 101.
2 Adams v. Woodbridge, 4 111., 255; Sherlty v. Howard, 3 Chic. Leg.
News, 280; Gregory v. King, Id., 349.
8 Strasberger v. Burk (Md., 1874), 13 Am. Law Reg. (N. S.), 607; Nichols
V. Mudgett, 22 Vt., 546; Duke v. Asbee, 11 Ired., 112. And upon the gen-
eral question of the invalidity of contracts made in violation of the estab-
lished policy of the law, see Spaulding v. Preston, 21 Vt., 9. In Penn-
sylvania it is held that an act of the General Assembly providing for the
punishment of frauds and bribery at nominating elections and conven-
tions is constitutional and valid. Leonard u Commonwealth, 113 Pa.
St., 607, 16 Am. & Eng. Corp. Cas., 136.
* Supra.
OHAP. Vn.] KEGULATIONS. 167
a candidate for town representative, the parties agreed that
the former should use his influence for the plaintiff's elec-
tion, and do what he could for that purpose, and that, if the
plaintiff was elected, that should be a satisfaction of his
claim. Nothing was specifically said about the defendant's
voting for the plaintiff, but he did vote for him, and would
not have done so, nor favored his election, but for this agree-
ment. The plaintiff was elected. Held^ that the agreement
was void, and constituted no bar to a recovery upon the de-
mand. And in Meaeham v. Dow ^ it was held that a note
given in consideration of the payee's agreement to resign a
public office in favor of the maker, and to use his influence
in favor of the latter's appointment as his successor, was
void in the hands of the payee. An agreement between two
voters to " pair off " and both abstain from voting is void,
and the officers of the election cannot refuse to receive the
vote of one of the two on account of such an agreement.
§ 222. In a contested election case, very little attention
should, ordinarily, be paid to mere irregularities in the pro-
ceedings of the election officers which do not affect the real
merits of the case.^ Thus, it was held by the Court of Ap-
peals of New York, in People v. Cooh^^ that where the evi-
dence goes only to show an irregularity without fraudulent
intent, and by which nobody is injured, the Court is not
bound even to submit it to the jury as an open question.
132 Vt, 721.
2 [Stockton V. Powell, 29 Fla., 1; State v. O'Daj, 69 Iowa, 368; State v.
Nicholson, 102 N. C, 465; Behrensmeyer v. Kreitz, 135 111., 591; Acker-
man v. Haenck, 147 III, 514; Soper v. County of Sibley, 46 Minn., 274
San Louis Obispo Co. v. White, 91 Cal., 432; Lehlbach v. Haynes, 54 N,
J. L., 77; Hannah v. Shepherd (Tex. Civ. App.), 25 S. W. Rep., 137
Stemper v. Higgins, 38 Minn., 222; Dial v. HoUandsworth, 39 W. Va.. 1
Sprague v. Norway, 31 Cal., 173; State v. Weed, 60 Conn., 18; Grelle v.
Pinney, 62 Conn., 478; Fowler v. State, 68 Tex., 30; Williams v. Shoudy,
12 Wash., 362; Curtin v. Yocum. 1 Ells., 416; Sterrett v. McAdams (Ky.),
34 S. W. Rep., 903; Young v. Simpson (Colo.), 42 Pac. Rep., 666; Houston
V. Steele (Ky.), 34 S. W. Rep., 6; Tebbe v. Smith, 108 CaL, 101; People v.
Wood, 148 N. Y., 142.]
3 8N. Y., 67.
168 ELECTIONS. [chap. YU.
The question in that case was whether ballots cast for Ben-
jamin C. "Welch, Jr. and Benjamin "Welch should be counted
for Benjamin Welch, Jr. Evidence was admitted to show
the voters' intention, and it was such as to leave no room for
doubt that all these ballots were intended for the latter, and
the court below instructed the jury to find accordingly.
This rule was affirmed in the Appellate Court.
§ 223. And in BorleauDs Case, tried before the Court of
Common Pleas of Philadelphia, it appeared that in the after-
noon of the day of election one of the clerks of the election
became so much intoxicated as to be unfit for his duties, and,
at the request of the inspectors, one Samuel C. Coxe acted
as clerk for the balance of the day, and until about 3 o'clock
in the morniug of the succeeding day, when the clerk, hav-
ing recovered from his debauch, appeared and signed the
returns. Mr. Coxe was not sworn and was a candidate for
assessor at this election. Held, that these facts were not
such as should induce the Court to set the election aside,
and the ground of the decision was, that the evidence did
not disclose any bad faith on the part of the officers, nor
any fraud.^
§ 224. In the same case it further appeared that one
John Haines, a candidate for judge, was occasionally in the
room where the election was held during its progress and
after the polls closed ; that he opened a few of the tickets,
but, being admonished, desisted. Several witnesses testified
to his handling tickets and to his intermeddling, and it is
clear that his conduct was improper in the extreme. But
the Court say that " it has not been pretended that this elec-
tion is in any particular tainted with actual fraud ; no evi-
dence has been adduced either showing legal votes to have
been rejected, or illegal votes received; the election seems to
have been honestly conducted," and for these reasons the
court declined to set it aside.
§ 225. "While it is well settled that mere irregularity on
the part of election officers, or their omission to observe some
12 Pars., 503; Bright Elec. Cas., 26a
CHAP. VII.] EEGULATIONS. 169
merely directory provisions of the law, will not vitiate the
poll, there has been some confusion and conflict as to what
we are to understand by irregularities, and as to what pro-
visions of statute are to be regarded as directory and what
mandatory.^ A few remarks upon this subject will be proper
in this connection. The language of the statute to be con-
strued must be consulted and followed. If the statute ex-
pressly declares any particular act to be essential to the
validity of the election, or that its omission shall render the
election void, all courts whose duty it is to enforce such
statute must so hold, whether the particular act in question
goes to the merits, or affects the result of the election, or
not. Such a statute is imperative, and all considerations
touching its policy or impolicy must be addressed to the
Legislature. But if, as in most cases, that statute simply pro-
vides that certain acts or things shall be done within a par-
ticular time or in a particular manner, and does not declare
that their performance is essential to the validity of the elec-
tion, then they will be regarded as mandatory if they do,
and directory if they do not, affect the actual merits of the
election.^
§ 226. Thus, it has been held in Missouri that a statute
making it the duty of judges of election to cause to be
placed on each ballot the number corresponding with the
number of the voter offering the same, and providing that
no ballot not numbered shall be counted, is mandatory and
must be enforced.' Although this doctrine may sometimes
result in very great hardship and injustice by depriving the
voters of their rights by reason of the negligence or miscon-
duct of the officers of election, it is nevertheless difficult to
1 [Votes cast by qualified voters at a polling place outside the district
in which they should have voted is at most an irregularity. Peard v.
State, 34 Neb., 372.]
2 See Barnes v. Supervisors, 51 Miss., 305; Wheelock's Case, 82 Pa. St.,
297; [Allen v. Glynn, 17 Colo., 338, 29 Pac. Rep., 670; Parven v. Wineberg,
130 Ind., 561; Bowers v. Smith, 111 Mo., 45; State v. Van Camp, 36 Neb.,
91 ; State v. Russell, 34 Neb., 116. Contra, Doores v. Varnon, 94 Ky., 507].
» Ledbetter v. Hall, 62 Ma, 422; West v. Ross, 53 Mo., 350.
170 ELECTIONS. [chap. VH.
see how any different construction could have been placed
upon such a statute. Statutes which simply direct the
judges of election to number the ballots, without declaring
what consequences shall follow if this be not done, may well
be held directory only ; ^ but where the statute both gives the
directions and declares what the consequences of neglecting
their observance shall be, there is no room for construction.
Such statutes are intended to prevent fraudulent voting; and
if the Legislature is of the opinion that the general good to
be derived from their strict enforcement will more than coun-
terbalance the evils resulting from the occasional throwing
out of votes honestly cast, the courts cannot reconsider the
mere question of policy. The legislative will upon such a
subject, when clearly expressed, must prevail.^
§ 227. The rule of construction to be gathered from all
the authorities was thus stated in Jones v. Tl\£ State^ and
approved in Gilleland v. Schuyler: * " Unless a fair consider-
ation of the statute shows that the Legislature intended com-
pliance with the provisions in relation to the manner to be
essential to the validity of the proceedings, it is to be re-
garded as directory merely." ' And in the latter case the
court said : " Questions affecting the purity of elections are
in this country of vital importance. Upon them hangs the
experiment of self-government. The problem is to secure,
first, to the voter a free, untrammeled vote ; and secondly, a
correct record and return of the vote. It is mainly with
1 [People V. Bidleman, 69 Hun, 596; State v. Thayer, 31 Neb., 82.]
2 [Major V. Barker (Ky.), 35 S. W. Rep., 543; Slaymaker v. Phillips
(Wyo.), 42 Pac. Rep., 1049; State u Connor, 86 Tex., 133; Russell v. Mc-
Dowell, 83 Cal., 70. The statutes of a State relating to the manner
of stamping a ballot are mandatory and not merely directory. Sego
V. Stoddard, 136 Ind., 297. The presumption of the law is that election
oflScers have discharged their duties, and if the statutes require them
to number the ballots cast, and ballots are found in the box which are
not numbered, the presumption will be that they are not legally cast.
Kreitz v. Behrensmeyer, 125 IlL, 141.]
8 1 Kan., 273, 279.
♦ 9 Id., 569.
8[Blankenship v. Israel, 183 DL, 514; Hodge v. linn, 100 HI., 397.]
OHAP. VII.] EEGULATI0N8. 171
reference to these two results that the rules for conducting
elections are prescribed by the legislative power. But these
rules are only means. The end is the freedom and purity of
the election. To hold these rules all mandatory and essen-
tial to a valid election is to subordinate substance to form,
the end to the means. Yet, on the other hand, to permit a
total neglect of all the requirements of the statute, and still
sustain the proceedings, is to forego the lessons of experience
and invite a disregard of all those provisions which the wis-
dom of years have found conducive to the purity of the
ballot-box.^ Ignorance, inadvertence, mistake, or even inten-
tional wrong on the part of local officials, should not be per-
mitted to disfranchise a district. Yet rules and uniformity
of procedure are as essential to procure truth and exactness
in elections as in anything else. Irregularities invite and
conceal fraud."
If we keep in view these general principles, and bear in
mind that irregularities are generally to be disregarded,
unless the statute expressly declares that they shall be fatal
to the election, or unless they are such in themselves as to
change or render doubtful the result, we shall find no great
difficulty in determining each case as it arises under the?
various statutes of the several States.^
1 [Provisions of registry law mandatory. Appeal of Cusick, 136 Pa.
St., 459.]
2 This doctrine is illustrated by the case of Fowler v. State, 68 Tex.,
30, 3 S. W. Rep., 255. It is here held that a failure to comply with
the law in such matters as the following will not necessarily invalidate
the election:
1. No tally-sheets or poll-lists being kept or returned.
2. Where the election returns contain no more than a mere state-
ment of the result of the voting.
3. Ballot-box containing the tickets being sent to the county judge
and clerk through the United States mail instead of by the presiding
manager of the election.
4. The returns not being made in triplicate.
5. The ballot-box used not being a proper one.
Such irregularities as these will not vitiate the election provided that
it is made to appear that the neglect or misconduct of the officers has
172 ELECTIONS. [chap. VIL
§ 228. Those provisions of a statute which affect the time
and place of the election, and the legal qualifications of the
electors, are generally of the substance of the election,
while those touching the recording and return of the
legal votes received, and the mode and manner of conduct-
ing the mere details of the election, are directory.^ The
principle is that irregularities which do not tend to affect
results are not to defeat the will of the majority ; the will of
the majority is to be respected even when irregularly ex-
pressed.2 The officers of election may be liable to punish-
ment for a violation of the directory provisions of a statute,
yet the people are not to suffer on account of the default of
their agents.*
§ 229. This doctrine was again recognized and enforced
in the case of Arnold v. Lea^ a case which affords an apt
not prevented an honest and fair election. For an example of a man-
datory statute see West v. Ross, 53 Mo., 350. See, also, Sees. 235, 228,
282. [The removal of the ballot-box from the place where the election
was held before the vote was counted, such removal being in violation
of a statute, will be sufficient ground for rejecting the return. Spencer
u Morey, Smith, 437.]
1 People V. Shermerhorn, 19 Barb., 540. [A statute prescribing the es-
tablishment of precincts at the regular meeting of the county commis-
sioners held immediately preceding the election is directory rather than
mandatory, and a designation of precincts by the commissioners at
another time will not invalidate the election. Botkin v. McGinnis, Mob.,
377. The failure to number the ballot of a voter at an election, while
an irregularity, is not of such a character as to deprive the voter of his
vote. O'Hair v. Wilson, 124 IlL, 351.]
2 Juker V. Commonwealth, 20 Pa. St., 493; Carpenter's Case, 2 Pars.,
540; Morris v. Van Laningham, 11 Kan., 269; [State v. Norris,37 Neb.,
299; Adsit v. Secretary of State, 84 Mich., 420; People v. Deverman, 83
Hun, 181].
' See upon this general subject the following authorities: Piatt v.
People, 29 IlL, 54; Hardenburgh v. Farmers' & Merchants' Bank, 2
Green (N. Y.), 68; Day v. Kent, 1 Oreg., 123; Taylor u Taylor, 20 Minn..
107; People v. Bates, 11 Mich., 362; McKinney v. O'Connor, 26 Tex., 5;
Jones V. State, 1 Kan., 273, 279; Gorham v. Campbell, 2 Cal., 135;
Sprague v. Norway, 31 CaL, 173; Keller v. Chapman, 34 Cal, 635;
Bright. Elec. Caa, 448, 449, 450; [Gilkey v. McKinley, 75 Wis., 543, 44
N. W. Rep., 762].
<CL & H., 601.
CHAP, vil] regulations. 1T3
illustration of the rule. In this case it appeared that at
one of the voting places the inspectors who were required
by law " to take charge of the ballot-box," between the ad-
journment on the first and the opening of the polls on the
second day of the election, delivered it to the sheriff, and
directed him to lock it up in some place where it would be
safe. The sheriff locked the box up in a trunk and left the
trunk in a store-house which was also locked. It was clear
from the proof that the box was not tampered with, and that
no person had been injured by the irregularity, and the
House, therefore, refused to reject the vote.
It also appeared that, at one of the precincts, " a large
gourd was made use of by the inspectors for the reception
of the ballots, and upon the closing of the polls on the evening
of the first day the gourd was carefully stopped and tied
up in a handkerchief, and delivered to one of the inspectors
for safe keeping; that the same was taken by him to his
home and locked up until next morning, and then returned
and used the second day." There was no evidence of fraud
or mismanagement in any other way. This was in clear
violation of the statute, which required that the ballots be
" placed in a box, which shall be locked or otherwise well
secured." It also appeared that some of the officers of the
election were not sworn as the law required. But the com-
mittee were of the opinion that, "notwithstanding some
irregularities in conducting the election in a number of pre-
cincts," it was " managed by the officers appointed to hold
the same, honestly and fairly and impartially, and accord-
ing to the spirit and meaning of the law of the State of
Tennessee, if not strictly within the letter of the statute,
and that a fair expression of public opinion has been ob-
tained at the several places referred to," and for these rea-
sons the committee reported against excluding the vote of
these precincts, and the House adopted the report.
§ 230. Under the laws of some of the States it is neces-
sary to keep separate boxes for the reception of ballots for
State officers and for members of Congress. In cases where
174 ELECTIONS. [chap. VII.
by mistake ballots have been dropped into the wrong box, as,
for instance, ballots for a member of Congress placed in the
box for State oflBcers, some question has been made as to the
right of the judges of the election to correct such mistake
by removing such ballots from the wrong box to the right
one. In the lower House of Congress it has been held that
ballots once deposited in the wrong box were lost and could
not be changed to the right one either by the voter or the
officers of the election.^ But the same question arose again
in the House in the more recent case of Newlam,d v. Gra-
ham? In that case one of the judges of the election testi-
fied that he and the other judges, finding that a few ballots
had been by mistake placed in the wrong box, had them
changed. There was no doubt as to the mistake, nor that
the judges acted fairly and in good faith. The committee
submitted to the House the question whether these ballots
should be counted — at the same time, however, intimating
very clearly their opinion that they should be. In this case
the recommendation of the committee was not adopted by
the House, or at least was adopted only in part, the seat
being declared vacant while the committee recommended
the seating of the contestant.'
§ 231. The question, therefore, being unsettled by the de-
cisions of the House, let us inquire what is the safe and
sound rule upon the subject. A little reflection will satisfy
any one that the doctrine of the report in Washhum v. Rijp-
ley * is open to grave objections. In the first place it puts
1 Washburn v. Ripley, CI. & H., 679.
2 1 Bart, 5.
3 [Ballots cast at an annual town meeting containing only the names
of candidates for excise commissioners, separate from the ballots con-
taining the names of the candidates for the other town offices, and de-
posited in a different box from that in which the ballots for the other
town officers were deposited, should not be counted under the ballot
law of 1890 (New York), which required that the names of all candi-
dates for town offices, including the commissioners of excise, should be
upon one ballot, and that all ballots cast should be deposited in one box.
Montgomery v. O'Dell, 67 Hun, 169.]
* Supra.
CHAP. VII.] REGULATIONS. 175
it within the power of a corrupt election officer to deprive
the voter of his ballot, by designedly placing it in the wrong
box,^ and, in the second place, it accomplishes the same re-
sult in case the ballot is placed in the wrong box by accident
or mistake. It is a rule well grounded in justice and rea-
son, and well established by authority and precedent, that
the voter shall not be deprived of his rights as an elector,
either by the fraud or the mistake of the election officer, if
it is possible to prevent it.^ It does not appear from the re-
port in Washburn v. Ripley that any proof was offered to
establish the mistake, beyond the simple fact that the ballots
were found in the wrong box. It is evident that the proof
should go farther than this. It should be shown that the
ballots were handed in by legal voters, and deposited in the
wrong box by the mistake, accident or fraud of the officer,
and any facts and circumstAnces tending to establish or to
disprove this proposition should be brought out in evidence.
§ 232. It is safe to say that a mistake should always be
corrected, if it can be corrected, and, therefore, the purpose
of the party seeking to get the benefit of ballots cast into
the wrong box should be to prove that they were good and
honest ballots, and were placed there by mistake or without
his fault. Wherever this is clearly shown, the mistake may
be corrected, if not by the officers of election, at least by the
tribunal trying the contest ; but if it is not a clear case of
mistake, or if there is any appearance of fraud on the part
of the voter, the ballot should be rejected. In other words,
the party who, in case of a contest, claims that ballots
found in the wrong box should be counted, should be put to
the proof that such ballots were fairly and honestly cast by
legal voters. It is unjust that the voter should be disfran-
chised because the officer receiving his ballot deposited it in
the wrong box. In determining this and similar questions,
in cases of contested elections, it should be kept constantly
in mind that the ultimate purpose of the proceeding is to
1 [Pennington v. Hare, 60 Minn., 146.]
2 [Moyer v. Van de Venter, 12 Wash., 377.]
176 ELECTIONS. [chap. VII.
ascertain and give expression to the will of the majority, as
expressed through the ballot-box and according to law.
Eules should be adopted and construed to this end, and to
this end only.
§ 233. The view here expressed is fully confirmed by the
decision of the Supreme Court of Michigan in People v.
Bates} In that case it was held that an elector is not to be
deprived of his vote either by the mistake or fraud of an in-
spector in depositing it in the wrong box, if the intention
of the voter can be ascertained with reasonable certainty .^
Nor should ballots be rejected because of being put in the
wrong box by the honest mistake of the voters themselves.*
In that case a State and city election were both held at the
same time and place, under the charge of the same officers,
and seven ballots for city officers were found at the closing
of the poll in the State box. The circumstances of the case
made it, in the opinion of the court, reasonably certain that
these ballots were in good faith put in by electors, and they
were accordingly counted.
§ 234. 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. The officers of election have no control over
ballots once deposited which will enable them to take any
such action ; and if they, under a mistaken idea of their au-
thority, withdraw and destroy a ballot supposed to have been
deposited by mistake, the person who claims to have voted
such ballot cannot vote at the same election at another
place.*
§ 235. It sometimes happens that the officers of election,
though acting in good faith, commit errors which will vitiate
the election. Thus, if they have adopted an erroneous rule
1 11 Mich., 362.
» [The same view adopted in State v. Horan, 85 Wia, 94]
»[Peard v. State, 34 Neb., 372.]
* Harbaugh v. Cicott, 33 Mich., 241.
CHAP. VII.] EEGTJLATI0N8. 177
in regard to the qualifications of voters, by which legal
votes were excluded, or illegal votes admitted, in numbers
suiBcient to change or to render doubtful the result, the
election is void, unless there is proof upon which the poll
can be purged of illegal votes and the true result shown. ^
And in such a case, if the erroneous rule affects a class of
voters, and it has become generally known to the persons
who are excluded by it, they may submit to it, without
waiving any rights, although they do not present themselves
at the polls and offer their ballots. They have the right to
take notice of the decision of the board in other cases pre-
cisely like their own. To require each voter belonging to a
class of excluded voters to go through the form of present-
ing his ballot, and having a separate ruling in each case,
would be an idle and useless formality. We are to look at
the substance and not the formality .^
§ 236. In accordance with the rule that the errors of a
returning officer shall not prejudice the rights of innocent
parties, it has been held that where it was the duty of the
presiding officer to return the votes sealed up, a return of
them unsealed, in the absence of any proof or suspicion of
fraud, is good. Also, that where the statute prescribes the
form of a certificate of the votes given to be executed by an
officer of the election, it is sufficient if the certificate is sub-
stantially according to such form, and a literal following of
the form is not required.' Also, that if the presiding offi-
1 [Where a village and a town in which it is situated are separate and
independent municipalities, the votes of the villagers, to be legal, must
be oast at the proper polling place of the village, and not at that of
the town, even though the places are near together, and by mistake of
the officers no separate election is held at the village polling place.
State V. Alder, 87 Wis., 554.]
2 §276.
3 [Stinson v. Sweeney, 17 Nev., 309. Where the election officers of a
township were furnished by the county clerk with official ballots
printed on white paper, and also with sample ballots printed on col- j
ored paper, in a separate package, and where by mistake the sample
ballots were used by all the voters of that township, and the official
12
178 ELECTIONS. [chap. VH.
cer, by mistake, insert the wrong name in his return of per-
sons voted for, the error may be corrected.^ And in the same
case it was held that votes fairly given, and not returned at
all,*may be proven and allowed.*
§ 23Y. The same principle was recognized and enforced
by the House of Representatives of the United States in
Root V. Adams^ where it was held that the error of a clerk
in incorrectly spelling the name of one of the candidates in
making the return of the election should be corrected by the
House as soon as ascertained. And when, by such correc-
tion, it was made apparent that the contestant had a major-
ity of the legal votes, he was admitted to the seat.
§ 238. And in Guy on v. /S«^d * the House corrected a mis-
take in the inspectors' return, by which the word " junior "
was omitted when it ought to have been inserted. There
are, of course, two kinds of errors and mistakes, which may
occur in making up the returns of an election, viz., such as
may be corrected from what appears upon the face of the
record, without a resort to extrinsic evidence, and such as
cannot be so corrected. In the case of a mistake of the
former kind, it may be corrected by the court or tribunal
trying the contest, as soon as discovered ; but if a mistake
occur which cannot be corrected by the record — that is to
say, one which is not apparent upon the face of the record, —
evidence aliunde is admissible, and should always be re-
sorted to to correct it, and to establish the very truth of the
matter.
§ 239. A statute of Kentucky required all votes to be
given in the presence of the high sheriff of the county or his
ballots on white paper were all returned unused by the judges of elec-
tion, and the election in such township was conducted regularly in
every other respect, and the ballots used by the electors of all political
parties were of the same color, held, that such ballots were rightly
counted. Boyd u Mills, 53 Kan., 594.]
1 Mallary v. Merrill, CL & H., 329.
«See, also, Golden v. Sharpe, CL & H., 869.
•CL&H., 271.
♦CL&H., 348.
CHAP. VII.] KEQULATIONS. 179
deputy. In Letcher v. Moore ^ it appeared that at one of the
polls both the high sheriff and his deputy were absent for
several hours. The sheriff had been called away by sick-
ness in his family, and after he left, and before the arrival
of his deputy, a number of votes were cast by legal voters.
The only objection to these votes was that they were not
given in the presence of the sheriff or his deputy. A ma-
jority of the committee reported in favor of rejecting these
votes, but the House, upon principles perfectly sound, re-
versed this decision, and ordered the votes to be counted.
The House in the same case and upon similar grounds over-
ruled the decision of the committee rejecting certain votes,
otherwise legal, for the reason that they were cast while one
of the judges of the election was not present, and while one
Moses Grant was acting under an illegal appointment by the
sheriff.
§ 240. An election will not be held void and set aside on
the ground that the mere police regulations of the election
law under which it was held were unconstitutional. The
citizens possess the prerogative of voting, and the Legisla-
ture cannot take that right away by encompassing an elec-
tion law with unconstitutional provisions. If the voters
think proper to go forward and vote under a defective law,
those who were candidates ought to be the last to complain
when the result has been affected by neither the unconsti-
tutionality of the law, fraud, error nor collusion." But, of
course, where, by reason of the enforcement of unconstitu-
tional and void regulations, even of a police character, the
result is affected, the rule is different ; and in such a case
the election cannot stand.
§ 241. A statute of Pennsylvania provides that upon the
petition of at least five citizens of the county, stating under
oath that frauds are apprehended in any election district of
such county, the Court of Common Pleas may appoint two
judicious, sober and intelligent citizens of the county to act
ICL&H., 84a
2 Andrews v. Lancier, 13 La. Ann., 301.
180 ELECTIONS. '[OHAP. Vn.
as overseers of said election, said overseers to have the right
to be present with the officers of the election during the
whole time the same is held, the votes counted and the re-
turns made out and signed by the election officers. They
are to keep a list of voters, if they see proper, to challenge
voters, and generally to aid in preventing or detecting frauds.
The statute further provides that if the officers of the elec-
tion " shall refuse to permit said overseers to be present and
perform their duties as aforesaid, or if they shall be driven
away from the polls by violence or intimidation, all the
votes polled at such election district may be rejected by any
tribunal trying a contest under said election." In Re Duffy ^
it was held that where overseers duly appointed under this
statute were not permitted to serve, but were driven away
by threats and intimidation, there is necessarily such a vio-
lent presumption of fraud that, in the absence of a perfect
showing of legality, fairness and regularity, the whole poJl
should be invalidated. " In the absence of any improper
conduct on the part of overseers appointed by the Court in
conformity with plain statutory requirement," says the
Court in that case, " we can hardly conceive of an excuse for
not permitting them to serve, or for driving them away,
which ought to find favor or apology."
§ 242. In the case of Duffy ^ sujpra^ the Court laid down
the rule that incompetency, inefficiency, and a reckless dis-
regard of essential requirements of the law on the part of
officers conducting an election, to such an extent as that
their acts become unreliable, must of necessity work the
same result as actual fraud. ]S'o doubt this is so, for it may
be regarded as a fundamental principle of the law of elec-
tions that whatever renders the returns or certificates of
election officers unreliable, or which, in other words, destroys
their value as evidence, is sufficient to set them aside and to
make it necessary to prove the fairness and legality of the
election by other evidence. Speaking of this rule, however,
the Court, in the case just cited, well says: "While this is
UBrewst., 531.
OHAP. Vn.] REGULATIONS. 181
the only safe and true doctrine, still, a construction might be
given to the statutes relating to elections so strict as to
foster and encourage fraud, rather than to crush it and stamp
it out." 1
§ 243. The opinion of the Judges of the Supreme Court
of Maine,^ in answer to questions submitted by the Governor,
growing out of the election and return of members of the
Legislature of that State, is important as illustrating the
doctrine that statutes regulating elections are to be con-
strued, if possible, so as to give full effect to the will of the
electors as expressed by their ballots. The following, among
other propositions, were, in substance, laid down by the
judges :
1. If it appears to the House of Eepresentatives that there
was an election of Representatives from any district, in fact,
they should admit the persons elected to their seats, though
no return thereof was made to the Secretary of State. The
Representative is not to be deprived of his rights because
election officers have neglected their duty.
2. The Constitution of Maine calls for a return that is
regular in essential forms, and which truly represents the
facts to be described by it ; but much of the constitutional
requirement is directory merely. It does not aim at depriv-
ing the people of their right of suffrage or of their right of
representation for formal errors, but aims at avoiding such
a result. The object of the constitutional provisions respect-
ing elections is to furnish as many safeguards as may be
against failure, either through fraud or mistake, correctly to
ascertain and declare the will of the people as expressed in
the choice of their officers and legislators.
3. A statute which permits the correction of an error or
1 [The return of a poll by the commissioners of an election is prima
facie correct, and will not be reversed because of the misconduct of
election officers or other persons, unless it plainly appears that such mis-
conduct changed the result of the election. Dial v. HoUingsworth, 39
W. Va., 1; Minear v. Tucker, 39 W. Va., 637.]
2 Justices' Opinion, 68 Me., 587.
182 ELECTIONS. [chap. TII.
omission in the return by reference to the duplicate state-
ment on record must be construed as mandatory, being
within the well-known rule which requires permissive words
to be so construed when public rights are concerned. Such
a statute imposes a duty to the public that must be per-
formed.
4. Where the board of aldermen of a city act as the re-
turning board to certify the result of an election in such
city, the return must be made by a quorum of the board ;
but a quorum (or majority) of the board being present, a
majority of that quorum may decide any question arising,
and if the return is signed by the majority of a quorum it
is sufficient. Bodies composed of a definite number of per-
sons act by the majority of those present, provided those
present constitute a majority of the whole number.^
6. The law of Maine provides that returns shall be made,
signed and sealed up in open town meeting. Where such
returns are presented to the Governor and Council, and pur-
port to have been made, signed and sealed up as this law
requires, they constitute the basis of action by the canvass-
ing board, and they haVe no power, in the absence of express
authority, to receive evidence to negative the facts therein
set forth. The statement of the election officers is, in this
respect, conclusive upon the canvassing board.
6. Where in a return the name of one person is written
out with the number of votes given him opposite to his name,
and other names are written under his with little dots or
marks placed under the figures or words of the first candi-
date's vote, the returns should be counted where it appears
by the letters or figures in the first line, and by ditto marks
or by dots in the following lines, that the same class of
candidates have received the same vote. There can be no
ground for the rejection of the word " ditto " and its abbre-
viation " do ; " and dots or marks that stand for the word
" ditto " are in common use and have a perfectly well-defined
15 Dane's Abridgment, 150; 1 DilL Mun. Corp., Sees. 216, 217.
CHAP. VII. J KEGULATI0N8. 183
meaning known to persons generally, and which should not
be disregarded.
7. The Governor and Council may inquire into a charge
that the signatures of the officers who sign a return are not
genuine, or that the returns have been altered; but in consid-
ering any such charge due notice should be given to the par-
ties in interest, and all witnesses examined should be duly
sworn. The genuineness of the returns in these particulars
is to be presumed, and this presumption remains until over-
come by evidence.
8. Where two lists of votes are returned from the same
town and materially differ from each other, the return first
received must be the basis of the action of the canvassing
board.
9. Upon the general subject of the spirit in which elec-
tion laws should be interpreted and executed, the judges use
the following strong but appropriate language :
"This government rests upon the great constitutional
axiom that all power is inherent in the people. * It is a
government of the people, by the people and for the people,'
and, if administered in the spirit of its founders, ' it shall
not perish from the earth.' Its Constitution was formed, to
use the apt expression of one whose memory is embalmed in
the hearts of his countrymen, ' by a plain people,' and a
' plain people ' must administer it. The ballot is the pride
as well as the protection of all. It is the truest indication
of the popular will. The official returns required from the
municipal officers of the several plantations, towns and clues
are and will be made by ' plain people,' and made, too, in
the hurry and bustle and excitement of an election. They
are not required to be written with the scrupulous nicety of
the writing-master or with the technical accuracy of a plea
in abatement. A sentence may be ungrammatical, the spell-
ing may deviate from the recognized standard, but the re-
turns are not brought to naught because the penmanship
may be poor, the language ungrammatical, or the spelling
erroneous. It is enough if the returns can be understood.
184 ELECTIONS. [chap. vh.
and, if understood, the full effect should be given to their
natural and obvious meaning. They are not to be strangled
by idle technicalities, nor in their meaning to be distorted
by carpings and captious criticisms. When that meaning is
ascertained there should be no hesitation in giving it full
effect." 1
§ 244. In case a foreign State is acquired or annexed to
the United States, it does not come to us with its political
organization intact, but upon the acquisition it is incumbent
upon the United States to establish a government for such
State. Hence, it was held upon this ground that the Terri-
tory of New Mexico, which had been a duly organized Ter-
ritory of the Mexican Republic, could not, upon being ac-
quired by the United States, proceed to elect a delegate to
Congress in advance of .the establishment of a Territorial
government therein.^ The same rule would doubtless apply
to any Territory of the United States, and an act of Congress
organizing the Territory and authorizing the inhabitants to
choose a delegate will in all cases be held indispensable to
the validity of an election for delegate in Congress.'
§ 245. "When the people of an organized Territory have
been empowered by Congress to form a Constitution pre-
paratory to admission into the Union, they may, in antici-
pation of such admission, elect Representatives in Congress,
who, in the event of the admission of such Territory as a
State, will be entitled to their seats. The act of admission
relates back to and legalizes every act of the Territorial au-
thorities exercised in pursuance of the enabling act.* But
if the Territory is not organized at the time of the holding
of an election for delegate, the same is void.'
§ 246. Whether, when a State government is formed of
a part of an organized Territory, the remainder of such Ter-
1 [Fowler v. State, 68 Tex., 30.]
2 Case of Hugh N. Smith, 1 Bart, 107.
'See, also, Case of A, W. Babbitt, of Deseret, 1 Bart, 116; Case of
W. S. Messervy, Id., 148.
♦ Case of Phelps and Cavanaugh, of Minnesota, 1 Bart, 248.
» Case of J. S. Casement, 2 Bart, 516.
CHAP. Vn.] EEGULATIONS. 185
ritory continues to enjoy the benefits of the original Terri-
torial organization, and among them the right to be repre-
sented in Congress by a delegate, seems to be an unsettled
question. In Fuller v. Kingsbury ^ the House held, against
the report of the majority of the committee, that upon the
admission of the State of Minnesota the Territory of Minne-
sota ceased to be, and that so much of the Territory as
lay outside of the limits of the State was left without any
legally organized government, and that the people thereof
were not entitled to elect a delegate in Congress until that
right was conferred upon them by statute. And this ruling
would seem to accord with reason ; and yet it appears that
the opposite rule was adopted in the case of Paul Fearing,
of Ohio Territory, in 1802, and in the case of Henry H. Sib-
ley, of Wisconsin Territory, in 1848.^ There may be a dis-
tinction between a case where the Territory is very large
and a State is formed out of it, leaving yet a large territory
and considerable population within the original territorial
limits, and one where the State, when formed, embraces the
principal part of the Territory and its population, and this
may explain the apparent conflict.
1 1 Bart, 251.
2 See report of majority of committee in Fuller v. Kingsbury, suprcu
CHAPTER VIII.
ELECTION OFFICERS — QUALIFICATIONS, POWERS AND
DUTIES.
1247-252. Validity of acts of officers de/acfo.
253. Color of authority defined.
254 Temporary departure of officer, no abandonment
255. The office must lawfully exist.
256. State and Federal officials may act at same election.
257. Paramount authority of latter with respect to Federal elections,
256, 257. Liability of State officials under act of Congress in certain
cases.
258. Election officers not to be interfered with.
259. Duty of certifying officer.
260. Duty of canvassing officer.
261. What duties are ministerial.
262-266. Canvassers can receive no evidence outside of returns un-
less expressly authorized by law.
267, 268. Canvassing board has, in general, no power after adjourn-
ment to reconvene and recount vote.
269, 270. But may be compelled by mandamus to re-assemble and
complete its work in certain cases.
371. Amending returns under statute of Massachusetts.
272. Partial canvass not sufficient.
273. Governor of State not an election officer within meaning of act
of Congress of May 31, 1870.
274. Law presumes validity of official acts of an election officer.
274, 275. Adjournment of an election by order of proper officer pre-
sumed to be valid.
276. No right to organize independent or outside polls.
277. Effect of division of election precinct.
278. Facts which may be certified.
279. No power over ballot after same is deposited.
280. Duty of town clerk under law of New Hampshire.
281. Opening and closing polls.
282. Time within which official act shall be performed.
283. Provisions as to mode and manner generally directory.
284. Number of voting placea
285. 286. Fraudulent refusal to establish voting places.
287. When judges may refuse to administer oath to voter.
288. Failure to appoint inspectors of election within time re quired.
CHAP. "VIII.] OFFICERS. 187
§ 247. In the House of Eepresentatives of the United
States there is a conflict of decisions touching the validity of
the acts of a person acting as an officer of election, and who
is such de facto only, and not de jure. In some of the
earlier cases in that body it was held that an election con-
ducted by persons not duly qualified was void. Thus, in
Jackson v. Wayne^ it was held that where the law required
three magistrates to preside at an election, a return by three
persons, two of whom were not magistrates, was fatally de-
fective.' And in McFarland v. Culpepper^ it was held,
without much consideration or discussion, that a failure on
the part of election officers to take the required oath vitiates
the election ; and this ruling was followed in Easton v. Scott,^
and in Draper v. Johnson.^ In Howard v. Cooper^ the vote
of a precinct was thrown out because the election was pre-
sided over by but two inspectors, when the statute required
three ; and in Delano v. Morgan^ the vote of one township
was thrown out, upon the ground that one of the three
judges was a deserter from the Union army, and therefore
not capable of taking or holding the office.
§ 248. On the contrary, however, the cases of MulliJcen
V. Fuller,^ Clarlc v. Hall^ Flanders v. Hahn^^ and Blair-;
V. Barrett}^ all seem to recognize the doctrine that, in the
absence of fraud, the acts of an officer de facto of an elec-
tion are valid as to third parties and the public. It is, how-
ever, undeniable that prior to the 41st Congress the weight
of authority in the House of Eepresentatives was on the
side of Jackson v. WoA/ne, and the other cases cited in the
1 Cl. &, H., 47.
2 [The same rule has been adopted in Georgia. Walker v. Sanford, 78
Ga., 165.]
3C1. &H., 221.
<C1. &H., 272.
5 Id., 702.
6 1 Bart., 275
7 2 Bart., 168.
8 1 Bart., 176.
9 Id., 215.
10 Id., 438,443.
" Id., 313.
188 ELECTIONS. [chap. VIH.
last preceding section, which followed that ruling, down to
and including Delano v. Morgan.
§ 249. But in the case of Barnes v. Adams^ which arose
in the Fortj-first Congress, the question was reviewed at
length, and most of the cases arising both in Congress and
the courts, were cited and examined, and the conclusion was
reached both by the Committee and by the House, that in
order to give validity to the official acts of an officer of
elections, so far as they affect third parties and the public,
and in the absence of fraud, it is only necessary that such
officer shall have color of authority. It is sufficient if he be
an officer de facto^ and not a mere usurper.^ The report in
this case, after quoting from numerous decisions, both in the
House and in the courts of this country, continues as
follows:
" The question, therefore, regarded in the light of prece-
dent or authority alone, would stand about as follows: The
judicial decisions are all to the effect that the acts of officers
de facto, so far as they affect third parties or the public, in
the absence of fraud, are as valid as those of an officer de
jure. The decisions of this House are to some extent con-
flicting; the point has seldom been presented upon its own
merits, separated from questions of fraud; and in the few
cases where this seems to have been the case the rulings are
not harmonious. In one of the most recent and important
cases, Blair v. Barrett^ supra^ in which there was an ex-
ceedingly able report, the doctrine of the courts, as above
stated, is recognized and indorsed. The question is there-
fore a settled question in the courts of the country, and is,
so far as this House is concerned, to say the least, an open
one."
"Your committee feel constrained to adhere to the law as
it exists and is administered in all the courts of the country,
not only because of the very great authority by which it is
» 2 Bart., 760.
' [Smith V. Jackson, Row., 9.]
CHAP. VIII.] OFFICERS. 189
supported, but for the further reason, as stated in the outset,
that we believe the rule to be most wise and salutary. The
officers of election are chosen of necessity from among all
classes of the people; they are numbered in every State by
thousands; they are often men unaccustomed to the formali-
ties of legal proceedings. Omissions and mistakes in the
discharge of their ministerial duties are almost inevitable.
If this Plouse shall establish the doctrine that an election is
void because an officer thereof is not in all respects duly
qualified, or because the same is not conducted strictly ac-
cording to law, notwithstanding it may have been a fair and
free election, the result will be very many contests, and, what
is worse, injustice will be done in many cases. It will enable
those who are so disposed, to seize upon mere technicality in
order to defeat the will of the majority."^
§ 250. The report of the committee in this case was
adopted by the House, nem. con.^ after a full discussion,'
and the doctrine there asserted may now be regarded as the
settled law of the House. The same point was decided in
the same way, and by the same House, in the case of Egglea-
ton V. Strader,^ and an admirable discussion of the question
will be found in the report of the committee in that case
made to the House by Mr. Hale, of Maine. It is true that
the writer of the report in the case of Beid v. Julian,^ as-
serted the contrary doctrine, but the case was decided inde-
pendently of that question. It turned upon a question of
fact, as to whether fraud was proven, so that this case can
not be regarded as an authority against Barnes v. Adams,
and Eggleston v. Strader. The doctrine of the latter cases
was reaffirmed in the case of Gooding v. Wilson, 42d Con-
gress.
§ 251. In the courts of the country the ruling has been
uniform, and the validity of the acts of officers of election
1 [Thobe V. Carlisle, Mob., 533.]
2 Cong. Globe, July, 1870, pages 5179 to 5193.
»2 Bart., 897.
< 2 Bart., 833.
190 ELECTIONS. [chap. VHI.
who are sucli de facto only, so far as they affect third persona
and the public, is nowhere questioned. The doctrine that
whole communities of electors may be disfranchised for the
time being, and a minority candidate forced into an oflBce,
because one or more of the Judges of election have not been
duly sworn, or were not duly chosen, or do not possess all
the qualifications requisite for the office, finds no support in
the decisions of our judicial tribunals.' We here refer to
some of the leading cases. In Peoj^le v. Gooik^ the Court
eays:
"The neglect of the officers of the election to take any
oath would not have vitiated the election.' It might have
subjected those officers to an indictment if the neglect was
willful. The acts of public officers being in by color of an
election or appointment are valid, so far as the public is con-
cerned."
Again:
"An officer de facto is one who comes into office by color
of a legal appointment or election. His acts in that capacity
are as valid, so far as the public is concerned, as the acts of
an officer de jure. His acts in that capacity can not be in-
quired into collaterally."
The same doctrine was laid down by the Supreme Court of
Minnesota, in the case of Ta/ylor v. Taylor.^ One ground
of contest in this case was that " in certain towns at said
election the judges and clerks of said election did not take
the prescribed oath or any oath." The Court say:
"If the votes of the citizens are freely and fairly deposited
at the time and place designated by law, the intent and de-
sign of the election are accomplished. It is the will of the
electors thus expressed that gives the right to the office, and
the failure of the officers to perform a mere ministerial duty
in relation to the election can not invalidate it if the electors
I [Quinn v. Markoe, 87 Minn., 439.]
«4Seld., 67.
» [Yeates v. Martin, Ella, 484]
<10 Minn., 107.
CHAP, Vin.] OFFICEES. 191
had actual notice and there was no fraud, mistake, or sur-
prise."
Again the Court say:
" If the officers of election fail to perform their duty, the
law provides a penalty; but the election is not necessarily
rendered void."
Also, by the Supreme Court of Pennsylvania, in the case of
Baird v. Bank of Washington. ^ We quote a sentence from
the opinion in this case:
" The principle of colorable election holds not only in re-
gard to the right of electing, but of being elected, A per-
son indisjmtahly ineligible may be an officer de jfacto by
color of election."
Also, by the Supreme Court of Illinois, in Pritohett v. TJie
People.^ In the course of the opinion the Court say:
" It is a general principle of the law that ministerial acts
of an officer de facto are valid and effectual when they con-
cern the public and the rights of third persons; although it
may appear that he has no legal or constitutional right to
the office. The interests of the community imperatively re-
quire the adoption of such a rule."
The same Court, in The People v. Ammons^^ hold the
same doctrine, and state it in this language:
" The proof offered would have shown that he was an offi-
cer de facto, and as such his acts were as binding and valid
when the interests of third persons or the public were con-
cerned, as if he had been an officer de jure?"*
The Supreme Court of Missouri, in St. Louis Gov/aty
Court V. Sparks j^ says:
"When the appointing power has made an appointment,
and a person is appointed who has not the qualifications re-
quired by law, the appointment is not therefore void. Tbe
» 11 S. & R., 411.
« 1 Gilm., 525, 539. . ■
• 5 Gilm., 107. ■ , ,
« 10 Mo., 117. 131. . '
192 ELECTIONS. [chap. VIII.
|)er8on appointed is de facto an oflBcer; his acts in the dis-
icharge of his duties are valid and binding. * * ■»
A statute prescribing qualifications to an office is merely
directory, and although an appointee does not possess the
requisite qualifications his appointment is not therefore void,
unless it is so expressly enacted."
The Supreme Court of California, in the case of Whipley
V. McKune^^ hold the same doctrine. In this case the
election of McKune to the office of district judge was con-
tested upon the ground that "the officers conducting the
election in a given district were not sworn as the election
laws require." No fraud being shown the election was held
valid, notwithstanding such failure of the officers to be
sworn.
The Supreme Court of New York discusses this question
in an elaborate opinion in the case of Tlie Peojple v. Cooh^*
from which we quote a few sentences:
" It becomes important in this case to determine whether
the objections which are taken to the inspectors of elections
in the several cases presented in the bill of exceptions, are
of that character which should be held to invalidate the can-
vass in these several localities. These objections are of a two-
fold character, extending to the regularity or legality of their
appointment and to their omission to qualify by taking the
proper oath of office. * * * It is sufficient that they
were inspectors de facto. The rule is well settled by a long
series of adjudications, both in England and this country,
that acts done by those who are officers de facto are good
and valid as regards the public and third persons who have
an interest in their acts, and the rule has been applied to
acts judicial, as well as to those ministerial in their char-
acter. This doctrine has been held and applied to almost
every conceivable case. It can not be profitaUe to enter into
> 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,
<Reeder v. Whitiaeld, 1 Bart., 185, 189.
282 ELECTIONS. [chap. XII.
from the contest, or an attempt to compromise between the
contestant and incumbent, will not make it obligatory on the
House to discontinue the investigation.
§ 372. The House of Representatives has shown a dis-
position to give a liberal construction to the acts of Congress
in relation to the mode of conducting cases of contested elec-
tions. They are construed with reference more to the sub-
stantial rights of the parties, than to the exact wording of
the statute. And it may be expected that the House will
continue so to construe these statutes, for as we have else-
where shown, they are not absolutely binding upon the
House in any case. They are adopted only as wholesome
rules of practice, and of course a tribunal could hardly be
expected to construe with great strictness a statute which it
may in its discretion disregard altogether. It was accordingly
held in Kline v. Yerree,^ that where the contestant failed
to specify with particularity the grounds of his contest, he
might be permitted to specify such grounds orally. This,
however, should never be allowed in a case where the sub-
stantial rights of the sitting member might thereby be
prejudiced. As for example, if the notice is so vague as not
to put the sitting member upon his proper defense, and as
not to inform him with reasonable certainty of the nature of
the case, which he is expected to meet, it would be altogether
improper to allow such notice to be amended and perfected
by an oral or even by a written specification, made at the
trial and after the closing of the evidence on both sides. If
in such a case any amendment could be allowed, it would
necessarily follow that an extension of time within which to
take testimony should be ordered. To spring a new issue
upon the sitting member, of which he has had no notice, and
to try the same without permitting him to take testimony
touching such new issue, would be a course of proceeding
not to be tolerated,
1 1 Bart, 881.
CHAP. XII.] CONTESTED BLECTI0N8. 283
§ 3T3. The Houses of Congress when exercising their
authority and jurisdiction to decide upon "the election, re-
turns and qualifications" of members, are not bound by the
technical rules, which govern proceedings in courts of jus-
tice. Indeed the statutes to be found among the acts of Con-
gress regulating the mode of conducting an election contest,
in the House of Representatives, are directory only, and are
not and can not be made mandatory under the Constitution.
In practice these statutory regulations are often varied and
sometimes wholly departed from. They are convenient as
rules of practice, and of course will be adhered to, unless the
House in its discretion shall in a given case determine that
the ends of justice require a different course of action. They
constitute wholesome rules not to be departed from without
cause.* It is not within the constitutional power of Con-
gress by a legislative enactment or otherwise, to control either
house in the exercise of its exclusive right to "be the judge
of the election, returns and qualifications of its own mem-
bers."* The laws that have been enacted on this subject,
being therefore only directory and not absolutely binding,
would have been more appropriately passed as mere rules of
the House of Kepresentatives, since by their passage it may
be claimed that the House conceded the right of the Senate
to share with it in this duty and power conferred by the Con-
stitution. It is presumed, however, that the provisions in
question were enacted in the form of a statute, rather than
as a mere rule of the House in order to give them more
general publicity and place such directions as were thought
proper within the reach of whomsoever they might concern.
And the constant practice on the part of the House of vary-
ing these regulations has been regarded, no doubt, as a suffi-
cient protest against the power or right of the Senate in the
premises.
§ 374. In all legislative bodies which have the power to
* Williamson v. Sickles, 1 Bart., 288.
■ Constitution, Art. 1, Sec 6.
284: ELECTIONS. [cHAP. XH.
judge as to the election and qualifications of their own mem-
bers, the rule is well settled that when the right of the sitting
member is called in question, the body will look beyond the
certificate of the returning officers, and determine the ques-
tion upon the actual merits. The certificate is jprima facie
evidence only in such a controversy. The rule is the same
in the Courts, and in trials of contested election cases before
a jury.i But it is, as elsewhere shown, 2 equally well settled
that the returning board or officer whose duty it is to open
returns, ascertain the result, and issue commissions, can not
go behind the returns. And if a party wishes to go behind
the returns and set them aside, he must in his pleading make
specific allegations, showing wherein they are false. ^
§ 375. On the trial of a contested election before a board
or legislative body, the members returned as elected are not
competent to vote upon the question of the validity of their
own election.* This rule grows out of the doctrine that no
man should have a voice in deciding his own case. At com-
mon law it is held that even an act of parliament can not re-
quire anything so repugnant to natural justice, as that the
same person may be a party and a judge. ** Out of this prin-
ciple grows also the parliamentary rule which forbids a mem-
ber of a parliamentary body to vote upon any question in
which he is directly interested. The Court in Common-
wealth v. MoKloskey^^ does not put it too strongly when
it says "for a man to constitute himself a judge in his own
cause is indelicate and indecent."'
§ 376. A similar question arose upon the trial of Andrew
i§§ 201, 385. 503, 508, 513, 515; The People u Vail, 20 Wend., 121
•§§261,262,265,266.
• State eat rd. v. Townsley, 56 Mo., 107.
• Commmonwealth v. McKloskey, 2 Rawle, 369; Bright. Elec. Cas.,196L
• Davy «. Savadge, Hobart, 87; S. C, 12 Mad., 687.
• Supra.
^ To the same effect are the following authorities : Rice «. Foster, 4
Harr., 485; Carson's Case, 2 Lloyd's Debates, 23; Stockton's Case, U. S.
Sen., Cong'l Qlobe, 1865-6, page 1635; Cushing's Elec. Cas., 97.
CHAP. XII.] CONTESTED ELECTIONS. 285
Johnson, President of the United States, upon articles of im-
peachment, where the Senate of the United States permitted
Hon. B. F. Wade, Senator from Ohio, to sit as one of the
judges, and vote upon the articles, notwithstanding the fact
that being President ^ro tempore of the Senate, and ex-officio
Yice-President of the United States, he would have become
President, had the President been convicted, i The question
of Mr. Wade's right to be sworn as a member of the Court
of Impeachment was raised by Senator Hendricks, of Indi-
ana, and was debated at some length, and then withdrawn,
so that it was not formally decided. If, however, it had been
decided in his favor, it could only have been upon the ground
that it did not come within, or that it constituted an excep-
tion to, the rule we have stated. It was contended that the
State of Ohio, in the persons of her two Senators, had a
right to be heard in the decision of the great case of im-
peachment then pending, notwithstanding the contingent in-
terest which one of the Senators had in the result, and that
the importance of giving to each State an equal voice in that
decision, was sufficient to justify what was at least an apparent
departure from, or an exception to, that rnle. Whatever may
be thought of the soundness of this argument, it is sufficient
for our present purpose to say that it does not involve any
question as to the correctness of the general rule, that no man
shall be a judge in a matter in the decision of which be is
directly and personally interested.
§ 377. Where the law creates a board of canvassers with
power to determine from the returns who is elected repre-
sentative in Congress, the only remedy open to a person
aggrieved by the decision of such board is by a contest be-
fore the House of Representatives. Mandamus is not avail-
able in such a case.^ [Nor will mandamus be available for
one claiming a seat in a State Legislature where the Legis-
lature is empowered to judge of the election of its members.] '
12 Johnson's Trial, 486-7, 496; 3 Id., 860.
2 0'Hara u Powell, 80 N. C, 103,
3 [Wheeler v. Board of Canvassers, 94 Mich., 447.]
286 ELECTIONS. [chap, XH.
§ 378. In many of the States there are, as we have seen,
statutes creating special tribunals with limited jurisdiction
authorized to hear and determine cases of contested election.
Such tribunals, though not courts of general jurisdiction, are
necessarily empowered to hear and determine all questions
touching the regularity and legality of the acts of the oflScers
and persons conducting the election and making and certify-
ing the returns thereof.^ In the exercise of such jurisdiction,
such courts should recognize the presumption that all officers
and other persons engaged in conducting elections or in mak-
ing returns and certifying the results thereof, acted in accord-
ance with the law, until the contrary shall be specifically
alleged and fully proved.^
§ 379. Where the statute creates a board for the purpose
of determining election contests, and confers upon such board
exclusive jurisdiction in such cases, the courts are deprived
of jurisdiction to pass upon the results of any such contests.
But in such a case the proper court may, by mandamus,
compel such board to organize and proceed according to law
to the discharge of its official duties.' The statute of Ken-
tucky, under which this case arose, provided for a board to
be composed of the presiding judge of the County Court,
the clerk thereof, and the sheriff. It also provided as fol-
lows: "but if either is a candidate, he shall have no voice
in the decision of his own case. If from any cause two of
the before named persons can not, in whole or in part, act in
comparing the polls, their places shall be supplied," etc.
Under this statute it was held that the board must be com-
posed of persons entirely free from any interest, and that the
sheriff and coroner, both being candidates, could not act. It
would be a dangerous practice to permit two candidates to
act upon such a board, for although neither one of them
could vote for himself, yet they might vote for each other.
1 [State V. Slover (Mo.), 34 S. W. Rep., 1102.]
* Loomis V. Jackson, 6 W. Va., 613.
'Batman v. Megowan, 1 Met (Ky.), 533; [People v. Board of Alder-
men of Buffalo, 65 Hun, 300].
CHAP. XII.] CONTESTED ELECTIONS. 287
They might thus have a common interest to subserve, or they
might combine together to aid each other. The policy of all
such legislation is to guard against improper combinations,
and to secure just and impartial decisions.
§ 380. The charters of most municipal corporations con-
tain a provision to the effect that the council or other legis-
lative body thereof shall be " the judge of the election and
qualification of its own members." And an important ques-
tion has arisen as to whether the jurisdiction of a city
council, or other similar body, is, under such a charter, ex-
clusive of that given to the courts of justice or only concur-
rent with it. In State v. Funck^^ it was held that inasmuch
as the city had passed no ordinance defining the method by
which an election of one of its members may be contested,
the claimant could resort to the proceeding provided by
statute for trying title to a public office, but no opinion was
expressed as to what the law would be in a case where pro-
vision is made by ordinance for such trial. An examination
of the adjudged cases in this country will, however, show
that the jurisdiction of the courts to inquire into the regu-
larity and validity of elections — a jurisdiction which belongs
to all courts of general aud original jurisdiction — is not to be
regarded as taken away by any merely negative words.
Their jurisdiction remains unless it " appears with unequiv-
ocal certainty that the legislature intended to take it way."*
It follows that a charter provision that the council of a city
"shall be the judge of the election, qualifications and returns
of its own members," does not oust the courts of justice of
their jurisdiction. The two tribunals have concurrent juris-
diction in such a case; but if the provision be that no court
shall take cognizance of cases of this character, or that the
council shall be the sole or the exclusives or final judge, etc.,
then the courts are shorn of their power in the premises.*
» 17 Iowa, 865.
« Dill, on Mun. Corp., § 144.
• Upon this general subject see the learned and exhaustive discussion
by Judge Dillon, in his work on Municipal Corporations, §§ 139 to 148.
See also State v. Fitzgerald, 44 Mo., 425 ; Commonwealth v. Garrigues,
288 ELECTIONS. [chap. XII.
The true doctrine seems to be that a special remedy given
by statute is cumulative, and not exclusive of the ordinary
jurisdiction of the courts, unless the manifest intention of the
statute be to make such special remedy exclusive, and such
intention must be manifested by affirmative words to that
effect.!
§ 381. As has been stated, in the absence of special con-
stitutional and statutory provision to the contrary, the com-
mon law courts have jurisdiction of all cases of contested
election.* This jurisdiction has been held in Yirginia not
to be limited to cases of contest between competing candi-
dates. Under the law of that State an election may be
contested, although but one person was voted for at the
election.*
§ 383. It matters not how high and important an office
may be, an election to it must be by the majority or plural-
ity of the legal votes cast. And if any one without having
received such majority or plurality intrudes himself into an
office, whether with or without a certificate of election, the
courts have jurisdiction to oust him, unless some other tri-
bunal has been clothed with this power to the exclusion of
the courts. The question arose in the case of Governor
Barstow of Wisconsin^ whether the person occupying the
office of chief executive of a State can be required to appeal
before the courts and defend against another claimant for
that office. It was contended that the three departments of
the State government were equal, co-ordinate, and independ-
28 Pa. St., 9; Ewing ». Filley, 43 Pa. St., 384; Commonwealth ». Leech,
44 Pa. St., 332; Cooley on Const. Lim., 276, 623, 634, note; Smith t. New
York, 37 N. Y., 518; People v. Mahaney, 13 Mich., 481; Ex parte Heath,
3 Hill, N. Y., 42, and cases cited by Cowan, Judge; Palmer e. Foley, 86
Superior Court, (N. Y.), 14 ; Baxter «. Brooks, 29 Ark., 173. See also
Selleck v. Common Council 40 Conn., 359, citing the following cases : 2
Rawle, 369; 16 Iowa, 369; 35 Pa. St., 263; 44 Id., 332, 336, 341; 2 Ala.,
81; 15 Ohio St., 114; 14 Mich., 48; 1 Mete, (Ky.), 533; 9 Texas, 295.
1 See People v. Holden, 28 Cal., 123; People v. Jones, 20 Cal., 50; [State
V. Kempf, 69 Wis., 470; S. C. with note, in 17 Am. & Eng. Corp. Cases,
388-394].
2 §369.
^ Ex parte Ellyson, 20 Grat., 10.
CHAP. Xn.] CONTESTED ELECTIONS. 289
ent of each other, and that each department must be the
judge of the election and qualifications of its own members,
subject only to impeachment and appeal to the people; that
therefore the question as to who is entitled to the office of
Governor, can in no case become a judicial question. But
this doctrine received no countenance from the Court to
which it was addressed, and it is believed to be without the
support of any judicial authority. If adopted, it would
leave no peaceable and constitutional means for ousting a
successful usurper from either of the departments of the
State government.*
§ 383. In the case oi Dennett^Petitioner,^ it is held that
under a statute which requires that "the Governor and Coun-
cil shall open and compare the votes returned," etc., the act
of opening and comparing such votes is an official duty to
be performed by the executive department. And it was ac-
cordingly held in that case that the courts of the State could
not entertain the inquiry whether that duty had been cor-
rectly or incorrectly performed, and a mandamus to compel
the Governor and Council to certify the election of the
petitioner to the office of county commissioner, was refused,
upon the ground that the judiciary could not control the ex-
ecutive department of a State, in the performance of its
official functions.^ It is very clear that this ruling was cor-
rect, for mandamus will not lie to control the action of any
board or officer, in determining the result of an election.
But it does not follow that, because the executive of the
State and the council are constituted the returning board,
their conclusions are final. If a board composed of the gov-
ernor and council shall commit an error either by accident or
design, or by a misconstruction of the law, in determining
the result of an election, the party injured can undoubtedly
have his remedy in the courts of justice, the same as if the
result had been declared by a board composed of other persons.
1 Cooley's Const Lim., 624-5, note 1.
2 32 Maine, 508.
»[Corbitt V. McDaniel, 77 Ga., 544.]
19
290 ELECTIONS. [CHA.P. XII.
§ 384. In a proper case the Supreme Court of Wiscoasin
will require the board of State canvassers to determine in
accordance with law which one of the candidates at an elec-
tion in that State, for the office of representative in the Con-
gress of the United States, is entitled to the certificate of
election. This does not contravene the constitutional power
of the House to determine its members' right to the office;
the court merely deciding whether the return made to such
board, of votes cast in a county, should be included in their
canvass and statement.*
§ 385. The courts will not undertake to decide upon the
right of a party to hold a seat in the legislature, where by
the constitution each house^is made the judge of the elec-
tion and qualifications of its own members; but a court may
by mandamus, compel the proper certifying officers to dis-
charge their duties and arm the parties elected to such legis-
lative body with the credentials necessary to enable them to
assert their rights before the proper tribunal.^ And, inas-
much as canvassing and returning officers act ministerially
and have no power to go behind the returns, or inquire into
the legality of votes cast and returned, a court will by man-
damus compel them to declare and certify the result as shown
hy the returns^ because that is their plain duty; but the
award of a certificate of election under such mandate, will
not conclude the legislative body in determining the elec-
tion.'
§ 386. Unless especially authorized by statute a court of
chancery has no power to enjoin the holding of an elec-
tion ; * and it has also been held that such a court has no
1 State u Board of State Canvassers, 36 Wis., 498.
2 [State u Tan Camp, 36 Neb., 91.]
' O'Farrall v. Colby, 2 Minn., 180. As to the power of courts of justice
to compel, by mandamus, a complete and legal canvass, by the proper
canvassing officers, of the votes cast at an election, see People v. Nord-
heim, 99 111., 553. [The registrar of elections under the Code of Louisiana
is a constitutional executive officer and not exempt from judicial au-
thority to compel him by mandamus to perform the speciiic duties im-
posed on him by statute. State v. Houston, 40 La. Ann., 393; 4 S. Rep.,
50.]
* People V. Galesburg, 43 111., 435.
CHAP. XII.] CONTESTED ELECTIONS. 291
power to try a contested election even where the statute has
provided no mode of contesting, i And the same court has
held that a writ of injunction issued to restrain the olhcers
of an election from holding an election, or to restrain a board
of canvassers from canvassing the returns of an election, and
declaring the result, is absolutely void for want of power in
the court, and that such officers can not be punished for dis-
obedience thereto. 3 The doctrine announced is that courts
of equity have no inherent power to try contested elections,
and can only exercise such power where it has been con-
ferred by express enactment, or necessary implication there-
from. *
§ 387. It has been held as already seen,* that a court of
chancery should not interfere by injunction to restrain the
officers of election from counting illegal votes, or from
issuing certificates of election to persons not entitled to them.
The reason is that a court of chancery will not interfere
collaterally and in advance of a contest to pass upon the
claime of conflicting claimants of an office." In Miller y.
Lowery,^ the Court of Common Pleas of Philadelphia
granted an injunction to restrain a candidate who had
received a certificate of election, regular upon its face, from
taking possession of the office, upon the ground that the
certificate had been fraudulently issued.'
» Moore v. Hoisington, 31 111., 243.
« Walton B. Develing, 6t 111., 201; Dickey «. Reed, 78 111., 261.
» And see Peck v. Weddell, 17 Ohio St., 271 ; State v. Taylor, 15 Id.,
114; Commonwealth ». Garrigues, 28 Pa. St., 9 ; 41 Id., 396 ; Moulton «.
Reid, 54 Ala., 330; Pink v. Barr, 14 Phila., 154.
*§370.
» Lawrence v. Knight, 1 Brewst., 67, 69; Bright. Elect. Cas., 617. And
to the same effect is Hulseman v. Rems, 41 Pa. St., 396; Moore v. Hos-
ington, 31 111., 243. See, also, Peck v. Weddell, 17 Ohio St., 271 ; Umstead
V. Buskirk, 15 Ohio St., 114; Commonwealth v. Garrigues, 28 Pa. St., 9;
State V. Steers, 44 Mo., 223; Dickey v. Reed, 78 111.. 261; Jones v. Black,
43 Ala., 540; [Ex parte Ivey, 26 Fla., 537]. But this ruling, though evi-
dently sound and supported by the weight of authority, has not been
altogether uniform.
8 5 Phila., 202.
1 And see, also, Peck v. Weddell, 17 Ohio St., 271.
292 ELECTIONS. [chap. XH.
§ 388. Where the application is for an injunction to
restrain the officers of election from receiving votes from a
class of persons who are clearly disqualified, the rule that
chancery will not interfere in matters of contested election
does not apply, and an injunction may well be granted, for
in such a case, the object would not be, to decide prematurely
and collaterally a contested election case. Mcll/vain t.
Christ Churchy of Beading, i
§389. An injunction will not lie to restrain the proper
officer from recording the abstract of the vote of a county,
upon the question of removing the county seat, because of
frauds and illegalities in conducting the election. The
remedy for such wrongs is by means of a contest, as provided
by law.* An adequate remedy will always be found either
at law or in equity, for frauds perpetrated against the purity
of elections. If a result has been secured by fraud, and
the statute has provided no mode of redress, it by no means
follows that no redress can be had. The right of any person
claiming to exercise any public function or authority under
a fraudulent election, may be tested by proceedings in quo
warranto under the principles of common law.
§ 390. It is no objection to a proceeding in mandamus to
compel a board of canvassing officers to canvass and return
the votes cast for representative in Congress, that the same
is instituted in a State Court. The proceeding is one to
compel State officers to perform their ministerial duties, and
the fact that these duties appertain to the election of a
representative in Congress, does not deprive State courts of
their jurisdiction.*
§ 391. Under the statute of Pennsylvania, conferring
jurisdiction upon the Court of Quarter Session, to hear and
determine election contests, and making its decision final and
conclusive, it was held that an issue to a jury could not be
1 28 Legal Int., 126.
2 Peck V. Weddell, 17 Ohio St., 271; State v. Berry, 14 Id., 816; [Bynxim
V. Commissioners, 101 N. C, 412].
» State u Randall, 35 Ohio St., 64
CHAP. XII.] CONTESTED ELECTIONS. 293
directed to try the question of an alleged fraud in an election.
The chief reason given was that a trial by jury if conceded to
one contestant, must be conceded to all, and that "delay
must take place in preparing and setting down such an issue
for trial; after trial of the most tedious and expensive kind
the jury may disagree, (one dissenter from the rest being
adequate to produce that result,) and their consequent dis-
charge. Another and another trial may follow with like
results, until one of the parties weary with delay, or bank-
rupt in prosecuting his rights abandons them in despair,"
and by bills of exceptions and writs of error the proceedings
might be still further prolonged. This would operate most
unjustly to the contestant, if in the end it should appear that
he was rightly entitled to the office.*
§ 392. The same point was decided in the same way, by
the Supreme Court of Pennsylvania, in Ewing v. Filley.^
And in that case the Court also held that an act providing
for the trial of a case of contested election without the
intervention of a jury, is not for that reason unconstitutional.
" It is not," says Lowrie, C. J., in that case, " in the act
of organization of the State, nor in the perpetuation of its
organic succession, but in the administration of rights under
the organization, that the constitution secures the trial by
jury. The jury is the proper element in the determination
of rights which need enforcement by means of the State
organization; but there is a much larger popular element in
our elections — the votes of all the people; and all our political
practice shows that we have not considered a jury an essential
means in deciding contested elections of public officers.*
The contrary doctrine was asserted in People v. Cicott,*
but that case seems to stand quite alone and can not be
taken as a correct exposition of the law upon the subject.
1 Kneass' Case, 2 Parsons, 599; S. C, Bright. Elec. Cas., 260. [A partj
to a contested election case has no right to a jury trial. Pedigo v.
Grimes, 113 Ind., 148, and note to same case in 20 Am. & Eng. Corp.
Cases, 42; Hughes u Holman, 23 Oreg., 481.]
2 43 Pa. St., 389.
» Williamson v. Lane, 52 Tex,, 335; Newton v. Newell, 26 Minn., 629;
Commonwealth v. Leech, 44 Pa. St., 332.
* 16 Mich., 282.
294 ELECTIONS. [chap. XII.
§ 393. At common law the proper remedy aganist i
person claiming to exercise an office, and who was believed to
be not entitled thereto, was by the writ of quo warranto,
which was issued upon proper application for the purpose of
inquiring into the authority of such person, and ousting him
from such office, in case no authority should be shown. In
modern practice an information in the nature of a quo war-
ranto, is resorted to, in the absence of any statutory proceed-
ing.* And in fact where there are special proceedings
authorized by statute, they partake of the nature and retain
most of the substance of the common law proceeding by quo
warranto.
§ 394. According to the common law of England the in-
formation in quo warranto, was filed in the Court of King's
Bench, by the Attorney General. In this country it should
be filed by a law officer of the government, and presented to
the Court having the necessary common law jurisdiction.
The proceeding was originally of a quasi criminal character,
being intended to secure the punishment of the usurper by a
fine as well as to oust him, or seize the office or franchise for
the crown. But " it hath," says Blackstone, "long been ap-
plied to the mere purposes of trying the civil right, seizing
the franchise, or ousting the wrongful possessor; the fine being
nominal only."
§ 395. A statute which confers upon any elector of the
proper county the right to contest, at his option, the election
of any person who has been declared to be duly elected to a
public office, to be exercised in and for such county, does not
oust the jurisdiction of the proper court, on information in
the nature of a quo warranto, to inquire into the authority
of any person who assumes to exercise the functions of a pub-
lic office or franchise, and to remove him therefrom if he be
a usurper, having no legal right thereto.' " The two reme-
dies are distinct," says the court in that case, " the one be-
> 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.
Ǥ53.
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<z. A statute of Missouri ^ provides that the caption
of every ballot shall express its political character, and shall
not be designed to mislead the voter as to the name or names
thereunder. Construing this statute, the Supreme Court of
Missouri has held that a ballot headed " Democratic State,
Congressional and Senatorial, and Independent Judicial and
County Ticket " was not void, and could not be rejected on
account of its form.^ Under an earlier and similar statute
it was held, by the same court, that the heading "Eepublican
Independent Greenback " was not misleading as a matter of
law, but whether it was misleading should be determined as
a fact from the evidence.] *
1 Railroad Ca v. Bearss, 39 Ind., 598.
2 [Sec. 4671, Rev. Stat. 1889.]
'[Shields v. McGregor, 91 Mo., 534. See, also, Applegate v. Egan, 74
Mo., 258; RoUer v. Truesdale, 26 Ohio St, 586.]
* [Turner v. Drake, 71 Mo., 285. See, also, Sessinghaus v. Frost, 2 Ells.,
381.]
CHAPTEE XYL
VIOLENCE AND INTIMIDATION.
§ 550. Fairness, purity and freedom of elections must not be interfered
with.
550, 551. Slight disturbances will not vitiate election.
551. Rule stated.
553. Interference by the military.
553. Surrounding polls by military force.
554. Stationing troops in the vicinity of the election.
555-557. Misconduct of soldiers stationed near voting place.
558, 559. Duty of House of Representatives to inquire into charges
of intimidation.
560, 561. Violence and intimidation affecting a part only of the dis-
trict in which the election was held.
560a. Burden of proof where intimidation is shown.
562-564. General rules upon the subject stated.
565. It must be shown that the violence and intimidation affected
result.
566. Evidence of intimidation.
567. Importance of preserving freedom of elections.
568. Calling out militia on election day.
§ 550. If it clearly appear that the fairness, purity or
freedom of an election has been materially interfered with
by acts of violence, intimidation or armed interference, such
election should be set aside. Slight disturbances frequently
occur, and are often sufficient to alarm a few of the more
timid, without materially affecting the result or the freedom
of the election. The true rule is this : The violence or in-
timidation should be shown to have been sufficient either to
change the result, or that by reason of it the true result can-
not be ascertained with certainty from the returns. To va-
cate an election on this ground, if the election were not in
fact arrested, it must clearly appear that there was such a
4:08 ELECTIONS. [chap. XVL.
display of force as ought to have intimidated men of ordi-
nary firmness.^
§ 551. In Harrison v. Davis the committee say in their
report: "It (the specification) nowhere makes the formal
allegation that the law requires, either that the election was
arrested and broken up in every ward, or that so many in-
dividuals were excluded by violence and intimidation as
would, if allowed to vote, have given the contestant the ma-
jority. Either of these grounds, if stated and proved, would
have been in law decisive of the case, but neither is stated
in the specification, and neither is proved by the evidence."
The case of Bruce v. Loan arose in Missouri in the early
part of the war of the rebellion (1862), and the allegation
was that the election in many places was controlled, and
large number of voters overawed, by the " enrolled militia,"
a State military organization which had been raised and
armed for military service. There was much dispute about
the facts, but both the majority and the minority of the
committee appear to have conceded the correctness of the
general rule of law laid down in Harrison v. Davis.
§ 552. There can, however, be no doubt but that the law
looks with great disfavor upon anything like an interference
by the military with the freedom of an election. An armed
force in the neighborhood of the polls is almost of necessity
a menace to the voters, and an interference with their free-
dom and independence, and if such armed force be in the
hands of or under the control of the partisan friends of any
particular candidate or set of candidates, the probability of
improper influence becomes still stronger. And although
the fact that an armed force was stationed at or near the
polls will not, of itself, vitiate an election in the absence of
proof that it did in fact deter from voting a portion of the
electors sufficiently large to change or render doubtful the
1 Harrison v. Davis, 1 Bart., 341; Bruce v. Loan, Id., 482; Bromberg v.
Haralson, 44th Cong. [Smith, 355]; Tarbox v. Sughrue, 86 Kan., 325; 13
Paa Rep., 935. [To invalidate an election upon the ground of intimida^
tion, the burden is upon the assailant to show that voters were kept
CHAP. XVI.] VIOLENCE AND INTIMIDATION. 409
result, yet in such a case it would not be necessary to show
that the electors who declined to vote would have been in
actual danger if they had attempted to do so. If it be made
to appear that there was an armed force at the polls, and
that a number of voters sufficiently numerous to affect the
result or render it doubtful considered the presence of such
force so menacing to them as to render it unsafe for them
to vote, and that they had reasonable cause so to think, and
if for this reason they declined to go to the polls, the election
ought to be set aside.
§553. In Giddings Y. ClarJc^ 2i contested election case
tried by the United States House of Representatives of the
Forty-second Congress, the following facts were shown in
relation to the election in the county of Limestone :
" The colored voters generally failed to vote, so that only
twenty-eight votes were cast for Clark, to one thousand one
hundred and fifty-three for Giddings. That a state of ex-
citement and fear existed in this county about the time of
the election is clear. A collision occurred between some
colored policemen and certain white men, which resulted in
the death of one of the latter, and the wounding of one of
the former. This produced great excitement, and was fol-
lowed by a general uprising and arming of both whites and
blacks. On the day of election, the town where the election
was held was occupied by an armed force under command
of one Captain Richardson. Pickets were stationed on all
the roads leading into town, and persons coming in to vote
were obliged to obtain a pass from the military authorities.
Although the witnesses say that all voters were permitted
to come and go in peace, and that the freedmen were urged
to vote, yet it is clear that they abstained from doing so
for reasons which most men would consider good and suffi-
cient."
from voting or compelled to vote otherwise than they would. Mere
noise, confusion or threats will not suflSce. State v. Calvert, 98 N. C,
580.]
I [Smith, 91.]
410 ELECTIONS. [chap. XVI.
The committee were of the opinion that this was not a
free and fair election, and so reported to the House. The
correctness of this decision cannot be doubted. Where the
polls are surrounded by a military force, and voters required
to pass pickets, and procure permission of military authori-
ties, in order to approach them, there can be no free election.
It is no answer to this to say that the military are stationed
around the polls to preserve the peace and secure freedom
to all voters.
§ 554. A case may perhaps arise where it will not be
improper to station troops in the vicinity of the election,
at a place where they can be called"upon in case of emer-
gency to suppress riot or prevent bloodshed, but in all such
cases the troops should be removed from the actual presence
of the voters, and should not be permitted in any manner to
interfere with persons going to or returning from the polls.
We have inherited from our British ancestors a strong aver-
sion to interference b}'' the military power with the conduct
of elections, and this feeling has been heightened by the long
enjoyment in this country of the larger liberty of American
citizenship. As early as 1741 an attempt was made to inter-
fere with an election held for the city of Westminster, by
stationing a body of armed soldiers near the poll. On this
being shown to the House of Commons, it was by that body
resolved " that the presence of a regular body of armed sol-
diers at an election of members to serve in Parliament is a
high infringement of the liberties of the subject, a manifest
violation of the freedom of elections, and an open defiance
of the laws and constitution of this kingdom." In some of
the States there are statutes prohibiting the employment of
troops, or their presence, at any place of election during the
time of such election. Such a statute was enacted in Penn-
sylvania as early as 1803.^
§ 555. In the early case of Trigg v. Preston, in the House
of Eepresentatives of the Third Congress (1T93), the ques-
tion arose whether the presence of a part of the military
1 4 Smith's Laws, 101.
CHAP. XVI.] VIOLENCE AND INTIMIDATION. 411
force of the United States at the polls, and certain disor-
derly and improper conduct of theirs, was sufficient to vitiate
the election. The facts were as follows: A brother of the
sitting member was the commander of a company of Federal
troops, which was quartered near the voting place. On the
day of the election the said troops were marched, in a body,
twice or three times around the court-house, where the elec-
tion was held, and paraded in front of and close to the door
thereof. The troops were allowed to vote and voted gener-
ally in favor of the sitting member, but their votes were
thrown out by the returning officers. Some of them threat-
ened to beat any person who should vote in favor of the con-
testant. One of the soldiers struck and knocked down a
magistrate who was attending at said election. Three sol-
diers stood at the door of the court-house, and refused to
admit a voter because he declared he would vote for contest-
ant. There were altercations between the soldiers and the
people, which terminated after the jpoll was closed in a vio-
lent affray. Upon these facts the committee found and "re-
ported that the conduct of the soldiers as well as that of their
commander " was inconsistent with that freedom and fair-
ness which ought to prevail at elections ; and that although
it does not appear, from any other than hearsay testimony,
that any voter was actually prevented from voting, yet there
is every reasonable ground to believe that some were, and
that the election was unduly and unfairly biased by the tur-
bulent and menacing conduct of the military." ^ The report
of the committee was lost in the House. It may be conceded
that the facts in that particular case did not constitute such
violence and intimidation as should have vitiated the poll,
and still the rule we have stated remains well settled. If
this case did not fall within the rule it was because it did not
appear that the presence and conduct of the soldiery actually
deterred from voting a number of legal voters sufficiently
numerous to change or render uncertain the result.
ICL&H., 7a
412 ELECTIONS. [chap. XVI.
§ 556. We conclude —
1. That an armed force should never be stationed imme-
diately at the polls.
2. That in cases where riot and bloodshed are appre-
hended, troops may be stationed in. the neighborhood, if so
ordered by competent authority, with a view to keep the
peace and suppress such violence as is beyond the power of
the local peace oflBcers or courts to control.
3. That in all cases where it is alleged that armed soldiers
have interfered with the freedom of an election, either by their
presence or their conduct, or both, all the facts are to be con-
sidered, and the question is whether, by reason of the action
of such armed soldiers, legal voters have, for sufficient cause,
felt themselves obliged to abstain from voting in numbers
so large that if they had voted it would have changed the
result or rendered it uncertain.
§ 557. In the case of Bromherg v. Haralson^ the House
of Kepresentatives held that the stationing a small squad of
soldiers in the neighborhood of an election did not justify a
rejection of the poll, where there was no threatening con-
duct on their part and no evidence of actual intimidation.
§ 558. In the case of Biddle (& Richard v. Wing^ the
committee of elections of the House of Representatives ex-
pressed the opinion that it was not the duty of the House
" to inquire into the causes which may have prevented any
candidate from getting a sufficient number of votes to entitle
him to the seat." They considered that the duty of the
House was to inquire, and if possible ascertain, " who had the
greatest number of legal votes actually given at the election."
And accordingly the committee held that they could not
inquire into the truth of the allegation of one of the con-
testants, who did not claim to have received the greatest
number of votes actually cast, but alleged that " he would
have received the greatest number of votes had not his
friends, at the election holden in the city of Detroit, been
1 44th Cong. [Smith, 355].
'CLifcH., 504, 506. 507.
OHAP. XVI.] VIOLENCE AND INTIMIDATION. 413
intimidated from voi/ing^^ etc. This report was never acted
upon by the House, and therefore is without its sanction,
and depends for its force as a precedent solely upon the com-
mittee's recommendation.
It can hardly be said to state the doctrine upon the sub-
ject with completeness or accuracy. Intimidation of voters
may always be shown, and allegations and proof upon this
subject should always be heard. It must, however, in the
nature of things, be a rare case in which the votes of per-
sons prevented from voting by violence or intimidation can
be counted for one or the other candidate as if actually cast.
In order that a vote not cast shall be counted as if cast, it
must appear that a legal voter offered to vote a particular
ballot, and that he was prevented from doing so by fraud,
violence, or an erroneous ruling of the election oflBcers.
Just what is to be understood by offering to vote is not per-
haps perfectly well settled. If a voter approaches or at-
tempts to approach the polls for the purpose of depositing
his ballot, and is driven away, or by violence, intimidation
or threats prevented from the actual presentation of his
ballot to the proper oflBcer, and if he used proper diligence
in endeavoring to reach the polls and deposit his ballot, and
was not intimidated without sufficient reason, the better
opinion seems to be that his vote may be counted.^ But of
course voters who do not present themselves at the polls and
offer their ballots, or who do not attempt to go to the polls
at all, or attempting, fail, without reasonable cause, cannot
in any case ask that their votes be counted.'^
§ 559. But there is another ground upon which it is, in
such a case, proper to offer proof of intimidation and vio-
lence, and that is to the end that the House may deter-
mine whether there has been a free and fair election. For
if, by this means, legal voters have been deprived of their
right to vote in numbers sufficient to change the result, the
election may be set aside. In the report just referred to,
1 [Bisbee v. Finley, 2 Ells., 173.]
2 Newcum v. Kirtley, 13 B. Monroe, 515k
414 ELECTIONS. [chap. XVI.
the committee concede that there may be a case in which
" fraud and corruption should appear sufficient to destroy
all confidence in the purity and fairness of the whole pro-
ceeding." And it is very clear that if in the course of an in-
vestigation it should become apparent that there was intimi-
dation and violence sufficient to destroy the election, it would
be the duty of the House to declare it void, even though no
party to the contest has formally alleged that it was so. If
the allegation be as in the case of Biddle and Richard v.
Wing, supra, that enough of the friends of a contestant
were deterred from voting by violence and intimidation to
have elected him, if they had been allowed to vote, as was
their right, yet, if the evidence shows that the election
should be set aside, the House will not stop short of its duty
for want of an allegation that the election was fraudulent
and void. A court of justice might be so hampered by the
rules of pleading as to be unable to grant any relief beyond
that prayed for, but the House of Kepresentatives is not.
§ 560. In saying that upon sufficient proof of violence
and intimidation an election may be set aside, we mean, of
course, that the particular poll or polls where such violence
occurs shall be thrown out of the count.^ "Whether in a
case where a number of counties or precincts vote for the
same officer, and a portion of them are rejected for this
cause, the entire election is to be held void, is often a ques-
tion of difficulty. It is very clear that if the violence has
prevented a large proportion of the electors in the whole
district from participating, the election is void, and it is also
clear that if only a small part of the district was disturbed
by it, so that the great body of the electors have had a fair
opportunity to vote, then the election must stand, unless it
can be shown that but for the violence the result would have
been different. The difficulty arises in cases where the in-
fected part of the district is neither so large as to make it
clear that the election is void, nor so small as to make it
clear that the election is not void. Each case of this char-
1 [Smalls V. EUiott, Mob., 663.]
CHAP, XVI.] VIOLENCE AND INTIMIDATION. 415
acter must be determiaed by the circumstances surrounding
it, and with a view to promote the ends of justice. Much
will, of course, depend upon the relative vote of the several
candidates outside of the infected districts, because if any
one has a very large majority in the peaceable localities, and
the vote of the infected precincts is not large, there will be
less probability that the result has been achieved because of
the violence ; while, on the other hand, if the vote of the
peaceable precincts is very close, the rejection of a small
district for violence might be regarded as fatal to the elec-
tion. In a word, if it is apparent that to accept the result
as shown by the peaceable precincts would be to allow the
minority to choose the officer, then the election is to be held
void.
[§ 560a. It has been decided in the House of Eepresent-
atives that where intimidation is shown to have been re-
sorted to, the burden of proof is upon the person charged
with receiving the benefits of the intimidation to show that
the violation of law did not affect the result.] ^
§ 561. It was laid down by the committee of elections of
the Forty-first Congress, in several cases, that violence and
intimidation in some of the precincts does not invalidate the*
election in those which are peaceable.^
But thus broadly stated this is not a sound rule. This will
be apparent upon a moment's reflection. Suppose there are
ten counties in a Congressional district, and there is in nine
of them such violence at the polls as to destroy the fairness
and freedom of the election ; can it be claimed that the one
peaceable county should choose a representative for the ten ?
Clearly not. The true principle is, that if the great body of
the electors are prevented, without their fault, from partici-
pating in an election, it is not a valid election. "Where the
majority voluntarily remain away from the polls, the minor-
ity, however small, who do vote, may elect, but not so where
1 [Hurd V. Romeis, Mob., 429.]
-Hunt V. Sheldon, 2 Bart., 530-703; Syplier v. St. Martin, Id., 699; Wal-
lace V. Simpson, Id., 731; Darrall v. Bailey, Id., 754
416 ELECTIONS. [chap. XVI.
the majority are kept from the polls by violence and intimi-
dation.
§ 562. The rule laid down, in the cases just cited, cannot
be said to have received the unqualified sanction of the House
of Representatives, though in some of the cases the recom-
mendations of the committee were adopted. The House soon
found that under the operation of the rule persons were
likely to be seated in that body who were not the choice of
the majority. In the case of Syjpher^ supra^ the report of
the committee, which was based upon this rule entirely, was
overruled, and the election declared to be null and void, for
the reason, as we learn from the debate, that the parishes re-
jected for violence contained a majority of the voters of the
district. The case of Hunt v. Sheldon, supra, is regarded
as the leading case favoring the rule, but it was claimed by
some, at least, of the members who voted for that report, that
notwithstanding the violence there was a peaceable election
in the larger and more populous portions of the district. In
the course of the debate in Sypher's case, Mr. Garfield, of
Ohio, explained his vote in Sheldon's case, as follows:
" Mr. Garfield, of Ohio. When the case of Hunt v. Shel-
don was before the House I stated the ground on which I
acted. It was that in nine hundred and ninety-nine parts,
out of one thousand of the territory embraced by the dis-
trict, there was no disturbance, and among the majority of
the population, as exhibited by the census report, there was
no disturbance. I considered, therefore, that a very large
proportion of the territory, and a majority of the popula-
tion of the district, had a peaceable election, and that, there-
fore, we should not throw the election out."
And it is manifest, not only from the debate, but from the
action of the House in voting down the report in Sypher's
case, that the decision in Sheldon's case was not intended as
an indorsement of the doctrine that the peaceable precincts
may elect, without regard to their number or population.
§ 563. It was claimed by those who sustained the rule
as it was laid down by the committee in Sheldon's case, that
it was necessary for the protection of the freedmen of the
CHAP. XVI.] VIOLENCE AND INTmiDATION. 417
South, who were, as it was claimed, " peculiarly exposed to
violence and intimidation by the former master class, prone
by habit and inclination to domineer over their former
slaves." It may be hoped that the very anomalous condi-
tion of things which existed in that region at the time of the
elections, which gave rise to the reports under considera-
tion, was transient, and has already or will soon pass away
forever. At all events, it is by no means safe to establish a
rule applicable to all cases and for all time, and capable of
incalculable mischief in its general and universal application,
in order to provide for a few exceptional and extraordinary
cases. Nor can it be conceded that this rule was necessary,
even for the protection of the freedmen. The best protection
against violence is the enactment and enforcement of laws
for its punishment. Beyond this, it is enough that the com-
munity in which it occurs to such an extent as to prevent
the holding of free and fair elections should go unrepre-
sented, and, if need be, suffer the rigors of military rule, until
they decide to obey the laws and appreciate the blessings of
freedom for themselves and for all others.
§ 564. It would seem, therefore, that the following rules,
if administered in the light of the general principles which
have now been stated, will afford a safe guide :
1. If the violence and intimidation has been so extensive
and general as to render it certain that there has been no
fair and free expression by the great body of the electors,
then the election must be set aside, notwithstanding the fact
that in some of the precincts or counties there was a peace-
able and fair election.
2. Where there has been an election, embracing a number
of counties or precincts, in which there has been violence
and intimidation enough to exclude from the count one or
more precincts or voting places, but not enough to destroy
the freedom and fairness of the election as a whole, such
violence will not invalidate the election, nor affect the result
of it, unless it be shown affirmatively that but for it the
result would have been different.
27
^18 ELECTIONS. [OHAP. XVI.
3. The question in each case must be, has the great body
of the electors had an opportunity to express their choice
through the medium of the ballot and according to law, and
this question must be decided in the light of all the facts and
circumstances shown in the evidence. If some of the pre-
cincts or voting places are necessarily thrown out of the
count because of unlawful disturbances or violence, it will
be necessary to determine from the evidence whether their
exclusion necessarily destroys the fairness and freedom of
the election as a whole.^
§ 565. It was held in State v. Mason^ that a petition
which demanded that an election be set aside because of
violence and intimidation at the polls must allege that a
suiScient number of voters were prevented from voting to
have varied the result of the election. The Court observes:
" It is evident there would be no reason to contest an elec-
tion if the result could not be changed, and such would be
the event unless a number of voters had been prevented
from voting, sufficient to have varied the result." And to
the same purport is Augustin v. Eggleston?
§ 566. "Where it is alleged that a large number of per-
sons have been deterred from voting by violence and intimi-
dation, the testimony of those persons, or some of them,
should be produced. The opinions and impressions of others
is not sufficient. Upon this point the report in Norris v.
Wandley * has this language :
" It would seem that if over two thousand electors were
1 [" Efforts on the part of black citizens to enforce unanimity in poli-
tics among voters of their race through the influence of the church,
ostracism from society, and indignities which fall short of intimidation,
will not avoid an election. . . . To justify the annulment of an election
it is not necessary to show that a majority of the electors were actually
prevented from voting, or voted against their wishes; it is sufficient to
show that wrongs against the freedom of election have prevailed, not
slightly and in individual cases, but generally, and to the extent of ren-
dering the result doubtful." Jones v. Glidewell, 53 Ark., 161.]
214La. Ann., 505.
'13 La. Ann., 367; [Hurd v. Romeis, Mob., 423; Bo wen v. Buchanan,
Row., 193].
♦ 43d Congress [Smith, 68].
OHAP. XVI.] VIOLENCE AND INTIMIDATION. 419
deterred from voting, by violence, threats or intimidation,
some of these electors could be found to come forward and
swear to the fact. Your committee think that it would es-
tablish a most dangerous precedent to allow a fact of this
character, so easily established by the direct and positive
testimony of so many witnesses, to be proven solely by hear-
say and general reputation. We have not forgotten nor
overlooked the fact that the same state of things which
would make men afraid to vote for a particular party might
also make it difficult to secure testimony in behalf of that
party. But in many parts of the district where testimony
was taken there is no pretense that witnesses were intimi-
dated ; and besides, if the contestant had shown to the sat-
isfaction of the House that witnesses needed the protection
of the Federal Government in order to be safe in testifying
fully and freely, that protection would have been afforded at
any cost."
§ 567. The freedom of elections is of the utmost impor-
tance. The law justly regards all attempts to interfere with
the electors in the peaceable and quiet exercise of their rights,
or to improperly influence them against their judgment or
desire, as a crime, and, in addition to the ordinary punish-
ment of the crime of bribery of an elector, it is provided by
the Constitution of many of the States that whoever shall
be convicted of that crime shall forfeit the right to any office
of profit or trust under the State.^
§ 568. In some of the States it is provided by statute
that the militia shall not be called out for exercise or drill
on the day of election; and it has been held in New York
that a defendant, sued under an act of this character, cannot
plead in justification that he acted under the orders of his
superior officer. Nor is it any defense that defendant was
ignorant of the existence of the law.'^
2
1 See the Constitutions of Maryland, Missouri, New Jersey, West Vir-
ginia, Oregon, California, Kansas, Texas, Arkansas, Rhode Island, Ala-
bama, Florida, New York, Massachusetts, Vermont, Nevada, Tennessee,
Connecticut, Louisiana, Mississippi, Ohio and Wisconsin.
2 Hyde v. Melvin, 11 Johns., 5S0.
CHAPTER XYIL
IMPEACHMENT OF RETURNS FOR FRAUD OR ILLEGAL
VOTING.
§ 569, 570. Return, if free from fraud, the best evidence; but may be
impeached.
571. Nature of impeaching proof required.
571. Effect of rejecting return.
571. Fraudulent return must fall to the ground.
571. Dangers attending rejection of return.
672, 573. Character of parol proof which may be admitted.
574. Fraud by officers and by other persons.
575. Circumstantial evidence tending to show fraud.
576. Effect of proof of fraud which does not change result.
577. Check list as evidence.
578. Not necessary to show that officers participated in fraud.
678. Evidence aliunde the return.
579. What acts of election officers will constitute fraud.
580. Presence of unauthorized persons at the place of canvassing
votea
681. Return not rejected on account of illegal votes received if they
did not change the majority.
582. Proof that vote cast was largely in excess of niunber of legal
voters.
583a. Disregard of law sufficient to shift burden of proot
583. Other circumstantial evidence of fraud.
584 Fraudulent naturalization certificates.
§ 569. Although the return of the vote of a given pre-
cinct, made in due form, and signed by the proper officers,
is the best evidence as to the state of the vote, yet it may
be impeached, on the ground of fraud or misconduct on the
part of the officers of the election themselves, or on the part
of others. In election cases, however, before a return can
be set aside, there must be proof that the proceedings in the
conduct of the election, or in the return of the vote, were so
tainted with fraud that the truth cannot be deduced from the
OHAP. XVII.] IMPEACHMENT OF EETUENS. 421
returns.^ The rule is thus stated in Howard v. Coojper: '
" "When the result in any precinct has been shown to be so
tainted with fraud that the truth cannot be deducible there-
from, then it should never be permitted to form a part of
tiie canvass. The precedents, as well as the evident require-
ments of truth, not only sanction, but call for, the rejection
of the entire poll when stamped with the characteristics here
shown."
§ 570. The rule just stated needs the following explana-
tion in order that it may be correctly understood; The
committee, no doubt, meant to say that if the result, as
shown ly the returns, is tainted with fraud, the returns are
to be rejected as false and worthless. But as we have else-
where seen, the question whether the entire vote of the pre-
cinct shall be rejected for fraud depends upon another
question, viz. : Whether from any evidence it is possible to
ascertain the true result. The returns may be rejected as
fraudulent, and yet the true vote may, in some cases, be
ascertained ; and where it can be ascertained independently
of the rejected returns, the law requires that it be respected
and enforced.' "Where the true vote cannot be ascertained,
either from the returns or from evidence aliunde^ the vote
of the precinct is to be rejected.
§ 571. The return must stand until such facts are proven
as to clearly show that it is not true. When shown to be
fraudulent or false, it must fall to the ground.* This ruling
is well settled by numerous authorities, including the fol-
lowing.*^ The following remarks concerning the dangers
which may attend the application of this rule are here
quoted with emphatic approval from the report of the
1 [Chamberlain v. Woodin, 2 Idaho, 609.]
2 1 Bart, 275.
3 [Ferguson v. Allen, 7 Utah, 263.]
*[Blue V. Peter, 40 Kan., 701.]
5 Blair v. Barrett, 1 Bart., 308; Knox v. Blair, 1 Bart., 521; Howard v.
Cooper, supra; Washburn v. Voorhees, 2 Bart., 54; State v. Commission-
ers, 85 Kan., 640.
422 ELECTIONS. [chap. XVH.
committee of elections in the House of Eepresentatives, in
Washburn v. Yoorhees:^
" In adopting this rule the committee do not lose sight,
however, of the danger which may attend its application.
"Wholesome and salutary, not less than necessary, in its
proper use, it is extremely liable to abuse. Heated partisan-
ship and blind prejudice, as well as indifferent investigation,
may, under its cover, work great injustice. It is not to be
adopted if it can be avoided. 'Eo investigation should be
spared that would reach the truth without a resort to it.
But it is not to be forgotten or omitted, if the case calls for
its application. If the fraud be clearly shown to exist to
such an extent as to satisfy the mind that the return does
not show the truth, and no evidence is furnished by either
party to a contest, and no investigation of the committee
enables them to deduce the truth therefrom, then no alterna-
tive is left but to reject such a return.^ To use it under such
a state of facts is to use as true what is shown to be false.''
§ 572. Where the return showed that Geo. W. Julian
had received at a given precinct only one hundred and
forty-three votes, parol proof was admitted to show that the
return was false, and that in fact he had received a larger
number of votes than said return allowed him.' In this
case one hundred and seventy legal voters of the precinct
were called, and were permitted to testify that they had each
voted for Mr. Julian. It was objected that the proof was
not competent because the ballots were the best evidence;
but this objection was very properly overruled. The allega-
tion was that the ballots had been tampered with ; that a
fraud had been committed, by which a number of ballots
legallj'' cast had not been fairly deposited in the box and
honestly counted out and returned. Of course, in such a
case, the ballots might sustain the fraud. The ballots are the
best evidence, when it is shown or conceded that they are
1 Supra.
2 [Londoner v. People, 15 Colo., 557.]
> 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<mr
637. Power to punish for contempt.
637. 638. Power over witness summoned before them.
638. Power of legislative bodies generally over witnessea
639. Refusal of witness to answer questions.
639. Act of Congress of January 34, 1857.
639, 640. Power of House and of courts under said act
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.
§ 620. Inasmuch as the failure of the legislative depart-
ment of a government (whether National, State or municipal)
to organize and proceed regularly in the discharge of its duties
may prove a grave and most serious evil, it is important that
CHAP. XIX.] LEGISLATIVE BODIES. 447
the rules governing the organization of such bodies be
defined as clearlj as possible, and be adhered to and enforced
with great strictness. It will be our purpose in this chapter,
in the first place, to lay down at least the more important of
these rules, and secondly, to speak briefly of the power of a
legislative body over its members, and over other persons.
§ 621, It is to be observed in the outset that when a
number of persons come together, each claiming to be a
member of a legislative body, those persons who hold the
usual credentials of membership, are alone entitled to partici-
pate in the organization. For it is, as we have had occasion
several times to repeat, a well settled rule, that where there
has been an authorized election for an office, the certificate of
election, which is sanctioned by law or usage, is the jyrima
facie written title to the office.*
§ 622. Of course the first organization must be tem-
porary, and if the law does not designate the person who
shall preside over such temporary organization, the persons
assembled and claiming to be members may select one of
their number for that purpose. The next step is to ascertain
in some convenient way the names of the persons who are,
by reason of holding the proper credentials, prima facie
entitled to seats, and therefore entitled to take part in the
permanent organization of the body. In the absence of any
statutory or other regulation upon this subject, a committee
on credentials is usually appointed, to whom all credentials
are referred, and who report to the body a roll of the names
of those who are shown by such credentials to be entitled to
seats. This report being adopted, the body is prepared to
proceed to the election of permanent officers, by such mode
as the rules of the body may prescribe.
§ 623. There are, however, in this country numerous
statutes, prescribing the mode of organizing legislative
bodies. Thus, it is prescribed by an act of Congress that in
1 Kerr v. Trego, 47 Pa. St, 293.
448 ELECTIONS. [chap. XIX.
the organization of the House of Representatives of the
United States, the clerk of the preceding House shall preside
and shall make up a roll of members. He is required to
place upon such roll the names of all persons claiming seats
as representatives, from States which were represented in the
next preceding Congress, and whose credentials show that
they were regularly elected in accordance with the laws of
their States respectively — or the laws of the United States.
In case of a vacancy in the office of clerk, or of his absence
»r inability to act, the duties imposed upon him relative
to the preparation of the roll or the organization of the
House devolve upon the sergeant at arms and in case
of vacancy in both of said offices, or the absence or in-
ability of both to act, the said duties are to be performed by
the door-keeper of the House. * And by the laws of most of
the States, similar statutory regulations are provided. Thus,
in many of the States the Lieutenant Governor is ex officio
president of the State Senate, and presides over the organiza-
tion of the new Senate which commences with the expiration
of his term of office. In most of the States, the lower House
of the General Assembly is required to be called to order by
the clerk of the preceding House, and to be organized by
proceedings similar to those above described, in the organi-
zation of the lower House of Congress.
§ 624. Of course no business other than that which
pertains to the organization of the body, can be properly
transacted until after the members have been sworn accord-
ing to law. In the absence of any law designating the
person by whom the oath of office shall be administered, it is
usual to require the services of a jndge of one of the higher
Courts, and the chief justice of the Supreme Court of the
State is apt to be called upon to discharge this duty, though
it is presumed that in the absence of any established rule
upon the subject, the oath may be administered by any per-
son having authority to administer oaths generally. Imme-
diately upon the election of a permanent presiding officer,
1 For this statute in full, see Appendix to this volume.
CHAP, XIX,] LEGISLATIVE BODIES. 449
and upon his being sworn, it is proper to proceed to call the
roll of members, to the end that each member, as his name
is called, may advance and take the oath of office. In the
House of Kepresentatives of the United States, the oath of
office is administered to the Speaker by a member of the
House (usually by that one who has been longest a member),
and the other members are sworn in by the Speaker.
§ 625. The power given to each House of Congress to
" judge of the election, returns and qualifications of its own
members " does not authorize an inquiry into the moral
character of a person elected and returned as a member.
Such an inquiry can only be made, if at all, in the prosecu-
tion of proceedings for expulsion. The term " qualifications,"
as used in the Constitution, means the constitutional qualifi-
cations, to wit, that the person elected shall have attained
the age of twenty-five years, been seven years a citizen of
the United States, and shall be an inhabitant of the State in
which he shall be chosen.^ [But a Territorial delegate to the
House of Eepresentatives is not, strictly speaking, a member
of the House. He has no rights under the Federal Constitu-
tion to a seat, and, being entirely a creature of the statute,
the House may inquire into his moral character and exclude
him if he be judged unfit to hold a seat as delegate. In ac-
cordance with this principle, the contestant in Cannon v,
Campbell ^ was excluded for the reason that he was a polyg-
amist.]
§ 626. Notwithstanding the fact that these rules and
regulations governing the organization of legislative bodies
are well settled and generally understood, it will sometimes
occur that an organization may not be effected without great
delay and difficulty, and it has occasionally happened that
two bodies have organized and elected officers, being nearly
equal in point of numbers, and each claiming to be the law-
ful organization. Nor has the lower House of Congress al-
ways been able to organize without delay or difficulty. In
the Twenty-sixth Congress, the clerk of the House undertook
1 Maxwell v. Cannon, 43d Congress [Smith, 183]. 2 [2 Ells,, 604]
450 ELECTIONS. [chap. XIX.
to omit from the roll both the claimants for each of several
contested seats, and by this action the organization was de-
layed for some ten days. In this he was clearly wrong, for
it was his duty to place upon the roll the names of the per-
sons holding proper certificates of election, without regard to
the question whether the seats of any such persons were to
be contested. In the thirty-first, thirty-fourth, and thirty-
sixth Congresses, the organization of the House was delayed
by reason of the failure of a majority of the members to vote
for any candidate for speaker, thus preventing an election.
Delay from this cause may frequently occur, and can not be
prevented, so long as the votes of a majority of members are
required to elect a speaker. It was found necessary, in the
thirty-first and thirty-fourth Congresses, to adopt the plural-
ity rule in the election of a speaker, for the reason that the
majority seemed altogether unable to agree upon any person
for that office. This was effected by a resolution of the House,
authorizing an election of speaker by a plurality, and after-
wards by the passage of a confirmatory resolution, declaring
him "duly elected." *
§ 627. In case of a division of a legislative body, that
ought to be a unit, it becomes important to determine which
is the legal, and which the illegal assembly. In such a case
the true test is this: thai is the legal organization which has
" maintained the regular forms of organization, according to
the laws and usages of the body, or in the absence of these,
according to the laws, customs and usages of similar bodies
in like cases, or in analogy to them."* This rule afibrds the
best possible test of legitimate organization.
In all cases where part of a legislative body remains, and
where the body is to be completed by the receptio'n of new
members, the old members who hold over remain as an
organized nucleus, which receives the new members, when
the whole body proceeds to the exercise of all its functions.
The new members, though they be in the majority, must
meet with the old at the time and place fixed by law, and
1 Barclay's Dig., 126.
2 Kerr v. Trego, supra.
CHAJt\ XIX.] LEGISLATIVE BODIES. 451
proceed regulariy with the organization of the body, and they
cannot assemble elsewhere and organize the body. They
must join themselves to the existing body, for the members
holding over, though they may be in the minority, and not
sufficiently numerous to constitute a quorum, are yet the
bc/dy, for the purposes of receiving the new members and
acting as the organs of reorganizing the body. And this
principle applies, and often becomes very important, in those
cases where but a single officer of the preceding body holds
over, and is authorized to take charge of the organization of
the new body. Thus, as we have seen, the Clerk of the pre-
vious House of Representatives of the United States, is
authorized, by law, to preside at the organization of the new
House, and he is, therefore (unless he be absent, or incapaci-
tated, or the office be vacant, in which cases the law provides
a substitute), the only person who can take charge of the or-
ganization. Even if a quorum of the House should refuse
to recognize him, and should choose another to preside over
the organization, that action would be null and void.
It is apparent that this rule will, if adhered to, ensure a
legal organization and prevent a schism of the body, in every
case, though the process of organization may, in some cases,
be tardy. It may be urged that this rule puts too much
power in the hands of the person or persons who are em-
powered to prepare a roll of members, and take charge of
the organization ; but the answer is, that whatever of incon-
venience or hardship may result from this rule, can not be
weighed against the advantages of securing a regular and
legal organization, and avoiding the possibility of division,
disorganization, and conflict. Besides, the majority can
always, by legal and orderly means, correct errors and redress
wrongs, if any are attempted upon their rights.
§ 628. In the event that a municipal or legislative body
which ought to be a unit, divides into two separate bodies,
each claiming to be the legitimate and legal organization,
what is the remedy by which the authority of the lawful
body may be maintained, and the unlawful body be re-
strained from assuming and attempting to exercise functions
452 ELECTIONS. [chap. XIX..
which do not belong to it ? In considering this question, we
must keep in view the fact that there are two classes of legis-
lative bodies, to-wit: those which are supreme, and those
which are subordinate. To the former class belong the Con-
gress of the United States, and the legislatures of the several
States. These represent the supreme legislative power of the
nation or of the State. To the latter class belong the com-
mon councils of cities and towns, and other similar municipal
legislative bodies. These are under law^ and subordinate to
the judgments and orders of the courts of justice.
For a failure to organize a supreme legislature, there is no
remedy which courts of justice can administer; and this fact
makes it all the more important that the rules which have
been established to prevent such failure, and avoid the an-
archy, confusion, and possible bloodshed, which might ensue,
should be adhered to. As to subordinate legislatures, such
as are not supreme, but subject to the jurisdiction of the
judiciary, it has been held that an illegal body may be re-
strained by injunction, from acting. In the case of Kerr v.
TregOy supra^ the Supreme Court of Pennsylvania discussed
the question of the remedy for these evils, as follows:
" Have the Courts authority to redress this wrong ? We
think they have. All bodies, except the supreme legislature,
are under lawy and therefore, for all transgressions of law
are subject to the authority of the judicial power established
by the constitution. The corporation itself is subject to this
authority, so far as its acts are directed by law, though it is
not, and can not be so, in so far as it is itself a law-making
power; in so far as its judgment and discretion are uncon-
trolled by the law of the land, it is free from the control of
the courts; but in so far as its acts are directed by law, it is
subject to the judicial authority; much more, then, are its
officers subject to this authority, and especially those that
pretend to act as its officers, without right, and as there can
not be two common councils, one of these bodies must be a
mere pretender to the right to act as such. May the wrong-
CHAP. XIX.] LEGISLATIVE BODIES. 453
ful party be restrained from acting by the means of the
equitable remedy of injunction? We think it may; this
remedy extends to all acts that are contrary to law, and
prejudicial to the interests of the community, and for which
there is no adequate remedy at law; and we can hardly im-
agine any act that more clearly falls within this description
than one that casts so deep a shade of doubt and confusion
on the public affairs of a city as this does. In such a case
no remedy is adequate that is not prompt and speedy as this
one. If a private partnership or corporation were to fall
into similar confusion affecting all its members, and all its
creditors, we can think of no better remedy than this for
staying the confusion that would be caused by two opposite
parties pretending to act as the society. It is the very
remedy usually adopted when churches divide into parties,
and we have applied it in three such eases in the last year;
therein we decided directly on rights of property^ because
that became the aim of dispute; here we must decide on the
right to -^whWQ functions, because that is here the purpose of
the dispute. The main question in all such cases is regular-
ity of organization, and the right to functions and property
is a mere consequence of this. May one of the conflicting
bodies, or the members of it, maintain this action against
the other? We think they may; this could not be doubted'
in relation to private corporations and partnerships ; but it ist
argued that in relation to public corporations the attorney,
general alone can file such a bill; we do not think so; it is a
right for those to whom public functions are entrusted, to»
see that they are not usurped by others. Either of thesei
bodies has the right to demand of the courts that it, and all
the interests of the public alleged to be committed to it,
shall be protected against the usurpation of the other. We
decided a similar principle in Mott v. The Railroad^^ and
we need say no more about it now. This case is, therefore,
1 80 Pa. Stn 8.
454 ELECTIONS. [cfiAl». XlX
regularly before ns, and we proceed to the consideration of
it, premising that there is no material fact in dispute, and
that we have no authority to decide directly upon the validity
of the election of any one of the claiming members."
§ 629. Inasmuch as Senators of the United States are
chosen in each State by the legislature thereof, it is manifest
that the Senate may sometimes find it necessary to inquire
and determine whether a body claiming to be the legislature
of a State is in fact such. If two bodies have organized,
each claiming to be the legislature, and each has elected a
Senator, of course the Senate, in order to decide between
them, must inquire and determine which was the legis-
lature. Such a case arose in Sykes v. Spencer^ in the
Senate of the United States.* And in determining, that
case the Senate of the United States laid down a rule
which may at first appear to be, but which is not in reality,
in conflict with the doctrine we have been considering in the
{)receding sections of this chapter. The contest between the
two legislatures in this case depended upon this: In one
body were eight or nine members who had received regular
certificates of election, but who were conceded not to have
been elected, while in the other was found an equal number
of persons duly elected, but without certificates of election.
To make a quorum of the former body, it was necessary to
count the persons holding certificates, but not elected, and to
make a quorum of the latter, it was necessary to count the
members duly elected, but without certificates. The former
body was called the State house legislature, while the latter
was called the court house legislature. The Senate held that
the body having a quorum of members in fact duly elected,
should be regarded as the legislature of the State, for the
purpose of electing the Senator in Congress, and the grounds
of this decision are thus stated in the committees* report,
submitted by Senator Carpenter of Wisconsin:
• Forty-third Congress, Ist Sess. Report No. 291.
OHAP. XIX.] LEGISLATIVB BODIES. 455
" The matifci, then, comes to thid: The State house legis-
lature was the legislature in form, and the court house
legislature was the legislature in fact. While these two
pretended legislatures were in existence, each claiming to
possess the legislative power of the State, Spencer was elected
to the Senate by the court house legislature, and Sykes was
elected by the State house legislature. Spencer was first
elected, and on the day of his election the court house legis-
lature was recognized by the governor as the legal legislature
of the State. Therefore, in determining as to the right of
Spencer or Sykes to this seat, the Senate is compelled to
choose between the body in fact elected, organized, acting,
and recognized by the executive department as the legisla-
ture, and another body, organized in form, but without the
election and without a recognition on the part of the execu-
tive of the State at the time they pretended to elect Sykes.
When we consider that all the forms prescribed by law for
canvassing and certifying an election, and for the organisation
of the two houses, are designed to secure to the persona
actually elected the right to act in the offices to which in
fact they have been elected, it would be sacrificing the end
to the means, were the Senate to adhere to the mere form,
and thus defeat the end which the forms were intended to
secure.
" The persons in the two bodies claiming to be the Senate
and House of Kepresentatives who voted for Spencer, con-
stituted a quorum of both Houses of the members actually
elected; the persons in the State House legislature who voted
for Sykes did not constitute a quorum of the two Houses
duly elected, but a quorum of persons certified to have been
elected to the two Houses. Were the Senate to hold Sykes'
election to be valid, it would follow that erroneous certificates,
delivered to men conceded not to be elected, had enabled
persons who in fact ought not to vote for a Senator to elect a
Senator to misrepresent the State for six years. On the
other hand, if we treat the court house legislature as the
4:56 * ELECTIONS. [chap. XIX.
legal legislature of the State, it is conceded that we give
effect to the will of the people as evidenced by the election.
So that, to state the proposition in other words, we are called
upon to choose between the form and the substance, the
fiction and the fact; and, considering the importance of the
election of a Senator, in the opinion of your committee the
Senate would not be justified in overriding the will of the
people, as expressed by the ballot-box, out of deference to
certificates issued erroneously to persons who were not
elected.
" In the opinion of your committee it is not competent for
the Senate to inquire as to the right of individual members
to sit in a legislature which is conceded to have a quorum in
both houses of legally elected members. But, undoubtedly,
the Senate must always inquire whether the body which
pretended to elect a Senator was the legislature of the State
or not; because a Senator can only be elected by the legisla-
ture of a State. In this case, Spencer having been seated by
the Senate, and being prima facie entitled to hold the seat,
the Senate can not oust him without going into an inquiry
in regard to the right of the individual persons who claim to
constitute the quorum in these respective bodies at the
Court House and at the State House. We can not oust
Spencer from his seat without inquiring and determining
that the eight or nine individuals who were elected were not
entitled to sit in the legislature of the State, because they
lacked the certificates. But if the Senate can inquire into
this question at all, it must certainly inquire for the fact
rather than the evidence of the fact. It can not be main-
tained that when the Senate has been compelled to enter
upon such an examination it is estopped by mere prima facie
evidence of the fact, and the certificate is conceded to be
nothing more than prima facie evidence. But the Senate
must go back of that to the fact itself, and determine whether
the persons claiming to hold seats were in fact elected.
When we do this we come to the conceded fact that these
CHAP. XIX.] LEGISLATIVE BODIES. 457
persons, lacking the certificate, had in fact been elected, and
that the persons who claimed to be a quorum of the two
houses were in fact the persons who, in virtue of the election,
were entitled to constitute the quorum of both houses."
§ 630. The case here decided was without an exact prece-
dent in the history of contested seats in the United States
Senate. It was, of course, insisted in opposition to the doc-
trine of the report that the Senate was bound to recognize as
the legislature of Alabama, that body which consisted of a
quorum of members holding the usual prima fade evidence
of election thereto. But the answer to this was that the
Senate may in such a case as this, inquire into the question
who in fact composed the legislature, and shall not be con-
cluded by the prima facie evidence by which a legislative
body in organizing itself ought to be bound. There was an
important fact in the case, of which we are speaking, which
must not be overlooked. The two bodies did not remain
separated, but came together, and after uniting and forming
a legislature, about the legality of which there was no ques-
tion, they adjudicated the question concerning the several
contested seats in favor of the persons who sat in the court
house body, which elected Mr. Spencer. So that the legis-
lature of Alabama itself having adjudicated this question, it
become in the Senate of the United States simply a question
whether effect should be given to the votes of persons who
had in fact no right to vote. This precedent should not be
extended beyond the case decided, and therefore all the facts
should be kept in view. It is believed that the case was
well decided upon the following rule, to- wit:
Where a State legislature, which ought to be a nnit, is
divided into two bodies, one of which is composed of a ma-
jority of the members elected, but not a majority of the mem-
bers returned, if this body assumes to be the legislature, and
as such elects a Senator in Congress, and if afterwards the
two bodies unite, the validity of such election of Senator
will depend, not upon the question whether the persons com-
458 ELECTIONS. [chap. XIX.
posing that body were priTna facie entitled to the office, but
\ipon the question whether they were in fact so entitled.
"WTiether this rnle would apply where the two bodies re-
tnained permanently separated, was not decided, for the
question did not arise. That it should apply to a case like
the one under consideration, is manifest from the considera-
tion that to adopt the opposite rule would be in effect to say
that a minority of the members elected, the consolidated
legislature being itself the judge as to who was and who was
not elected, shall be held to have composed the legislature.
This would be to put the form above the substance, and
to sacrifice the real merits out of regard to the first appear-
ances, and regardless of the fact that the prima facie evidence
of title to seats, upon which alone such a decision could be
based, has been set aside and overcome by subsequent proof.
But it may be said that the six persons holding certificates,
but not elected, should have been regarded as members of the
legislature de facto ^ and their acts as such held valid until
they were unseated by a contest. Here again is a misappli-
cation of a well settled rule.
The election of a Senator in Congress is not in the nature
of an ordinary legislative act; it is an election, and not the
enactment of a law. Of the validity and hona fides of such
an election the Senate of the United States is the sole and
exclusive judge.
The cases in which the official acts or votes of members of
a legislative body who are such de facto only, and not dejure,
have been held valid, are all cases in which there was no
question as to the legality of the hody in which they sat.
They are cases in which the body admitting such persons
was, in doing so, acting within its admitted jurisdiction, and
in such cases the courts will not inquire into the title of such
members to their seats. The courts, in such cases, will go
no further than to inquire as to the legal status and authority
of the body as a whole, but where there are two bodies, each
claiming to be the legislature, then the Court, whose duty it
CHAP. XIX.] LEGISLATIVE BODIES. 48&
is to respect and execute the acts of snch legislature, must of
necessity decide which is the legislature.
§ 631. From these considerations it is apparent that the
case of Sykea v. Spencer, is not in conflict with the rule that
in the organization of legislative bodies, persons holding the
usual credentials are alone authorized to act; nor is it in con-
flict with the general doctrine that the acts of a member of
a legislative body who is such de facto only, are valid. It
goes no further than to hold that the particular election in
question, though perhaps irregular, was not void; that it was
by the action of the consolidated and legal legislature, shown
to have been an election by the quorum of members duly
elected to the legislature; and that the Senate of the United
States acting as sole judge of said election, might with pro-
priety admit to a seat the person chosen at said election.
§ 632. A legislative body has power to preserve order and
decorum, enforce its rules, and prevent or punish any breach
of decorum or of the privileges of the body or of any of its
members. Mr. Gushing in his manual of parliamentary
practice, in speaking of the rights and duties of members of
a deliberative assembly, says: "The only punishments which
can be inflicted upon its members by a deliberative assembly
of the kind now under consideration consist of reprimanding,
exclusion from the assembly, a prohibition to speak or vote
for a specified time, and expulsion ; to which are to be added
such other forms of punishment as by apology, begging par-
don, etc., as the assembly may see fit to impose, and to re-
quire the ofi'euder to submit to on pain of expulsion." ^
§ 633. A member may be accused or complained of by
any other member, or by the presiding ofiicer, and it is the
duty of the latter to make such complaint to the House, in
case any member is guilty of irregular and disorderly deport-
ment in the course of the sessions of the body. When a
complaint of this kind is made, the offender is named, that
1 Cush. Man., Chap. 8.
460 ELECTIONS. [chap. XIX.
is the announcement is made to the assembly, that such a
member, calling him bj name, is guilty of certain irregular
and improper conduct. The accused member may be heard
in his defense, and after being heard, must withdraw, while
the body deliberates upon the case, unless the assembly
resolve to allow him to remain. He must not, however, in
any case, be allowed to vote on his own case, " it being,"
says Mr. Gushing, "contrary not only to the laws of decency,
but to the fundamental principles of the social compact, that
a man should sit and act as a judge in his own case."
§ 634. The power of the two Houses of Congress over their
members is derived from Article 1, Section 5, of the Constitu-
tion, which provides: "Each House may determine the rules
of its proceedings; punish its members for disorderly behavior,
and with the concurrence of two-thirds, expel a member."
The question has been much discussed, whether a member
may be punished or expelled for an act or acts done prior to
his election. The question seems first to have arisen in the
case of Senator Marshall, of Kentucky. (1804.) The Senate
in that case refused to take jurisdiction, for the reason,
among others, that the alleged offense had been committed
prior to the Senator's election, and was matter cognizable by
the criminal courts of Kentucky. But the doctrine of this
case was antagonized by the report submitted to the Senate
by John Quincy Adams, in December, 1807, in the case of
Senator John Smith, of Ohio, who, after his election, but not
during the session of the Senate, had been, as was alleged,
involved in the treasonable conspiracy of Aaron Burr. In
this latter case it was held that the power to expel should be
used as a means of relieving the body of the presence of
corrupt or infamous persons. The report says:
"The power of expelling a member for misconduct results,
on the principles of common sense, from the interests of the
nation that the high trusts of legislation shall be invested in
pure hands. When the trust is elective, it is not to be pre-
sumed that the constituent body will commit the deposit to
CHAP. XIX.] -LEGISLATIVE BODIBS. 461
the keeping of worthless characters. But when a man whom
his fellow citizens have honored with their confidence on a
pledge of a spotless reputation, has degraded himself by the
commission of infamous crimes, which become suddenly and
unexpectedly revealed to the world, defective indeed would
be that institution which should be impotent to discard from
its bosom the contagion of such a member; which should
have no remedy of amputation to apply until the poison had
reached the heart."
§ 635. The question was again raised in the case of
Matteson in the 35th Congress. The charges against Mr.
Matteson had been preferred in the previous Congress, and
a committee of investigation had reported against him,
recommending his expulsion. Pending these resolutions he
had resigned, having, however, at the time of his resignation
been re-elected. When he took his seat in the new Congress
by virtue of such re-election, the charges were renewed.
A majority of the committee reported adversely to the juris-
diction of the House. In the report, as well as in the
debate, the want of jurisdiction was based upon various
grounds, and among them, upon the ground that the offense
was committed prior to the election of the accused member.
After a long debate the whole subject was laid upon the
table, so that it cannot be said that the question was authori-
tatively determined, one way or the. other. Thus the question
stood, when the whole controversy came up anew upon the
report of the special committee to investigate the alleged
Credit Mobilier bribery. This investigation took place in
the forty-second Congress, and related chiefly to transactions
of members of the fortieth Congress. The report of this
case discusses the question at length, and concludes that the
power to expel is not limited to those cases where the accused
has been guilty of misconduct as a member, and subsequent
to his election. From this report we quote as follows:
" It is universally conceded, we believe, that the House
has ample jurisdiction to punish or expel a member for an
462 ELECTIONS. [chap. XIX.
offense committed during his term as a member, though
committed during a vacation of Congress and in no way
connected with his duties as a member. Upon what principle
is it that such a jurisdiction can be maintained? It must be
upon one or both of the following: that the offense shows
him to be an unworthy and improper man to be a member,
or that his conduct brings odium and reproach upon the
body. But suppose the offense has been committed prior to
his election, but comes to light afterward, is the effect upon
his own character, or the reproach and disgrace upon the
body, if they allow him to remain a member, any the less?
We can see no difference in principle in the two cases, and to
attempt any would be to create a purely technical and arbi-
trary distinction, having no just foundation. In our judg-
ment, the time is not at all material except it be coupled
with the further fact that he was re-elected with a knowledge
on the part of his constituents of what he had been guilty,
and in such event we have given our views of the effect.
" It seems to us absurd to say that an election has given a
man political absolution for an offense which was unknown
to his constituents. If it be urged again, as it has sometimes
been, that this view of the power of the House, and the true
ground of its proper exercise, may be laid hold of and used
improperly, it may be answered that no rule, however narrow
and limited, that may be adopted, can prevent it. If two-
thirds of the House shall see fit to expel a man because they
do not like his political or religious principles, or without
any reason at all, they have the power, and there is no
remedy except by appeal to the people. Such exercise of
the power would be wrongful, and violative of the principles
of the Constitution, but we see no encouragement of such
wrong in the views we hold.
" It is duty of each House to exercise its rightful func-
tions upon appropriate occasions, and to trust that tl.ose who
come after them will be no less faithful to duty, and no less
jealoQB for the rights of free popular representation than
CHAP. XIX.] LEGISLATIVE BODIES. 463
themselves. It will be quite time enough to square other
cases with right reason and principle, when they arise.
Perhaps the best way to prevent them, will be to maintain
strictly public integrity and public honor in all cases as they
present themselves. Nor do we imagine that the people of
the United States will charge their servants with invading
their privileges, when they confine themselves to the preser-
vation of a standard of official integrity which the common
instincts of humanity recognize as essential to all social order
and good government."
§ 636. Precisely the opposite doctrine was, however,
maintained in a report made to the House, from the commit-
tee on the judiciary, by Mr. Butler, of Massachusetts, and
which was submitted within a few days after that of the
Credit Mobilier investigating committee just quoted from.*
The question now under consideration entered very largely
into the debate upon the report of the Credit Mobilier inves-
tigating committee, and at the close of that debate Mr. Sar-
geant, of California, offered a substitute for the pending
resolutions, which substitute proposed to change the punish-
ment of the accused members from expulsion, to condemna-
tion and censure. This substitute consisted of two resolutions,
md the following preamble:
"Whereas, by the report of the special committee herein,
it appears that the acts charged as offenses against members
of this House, in connection with the Credit Mobilier of
America, occurred more than five years ago, and long before
the election of such persons to this Congress, two elections
by the people having intervened, and whereas grave doubts
exist as to the rightful exercise by this House of its power
to expel a member for offenses committed by such member
long before his election thereto, and not connected with such
election. Therefore," etc. The resolutions of condemnation
and censure, following this preamble, were first voted upon
* Cong. Globe, Third Session, 42d Congress, p&tX S, p. 1651.
464
ELECTIONS. [chap. XIX.
and were adopted by the House. A separate vote was then
taken on the adoption of the preamble, and it was lost by a
vote of ninety-eight yeas to one hundred and thirteen nays. *
Thus the House decided to sustain the doctrine contended
for by the special committee, and against the doctrine laid
down in the above mentioned report from the committee on
the judiciary. It may, therefore, be said that the House has
fairly decided the question, and has held that a member may
be expelled or punished for ojffenses committed prior to his
election, especially if those offenses were unknown to his con-
stituents at the time of his election. It will of course occur
to every one that this is a power which should be exercised
with great circumspection and moderation, and with a due re-
gard to the rights both of constituencies and of individual
members of Congress.
§ 637. It is very clear that either House of Congress
possesses the power to punish for contempt of its authority*
The power to punish for contempt of course includes the
power to hold in confinement a person summoned as a wit-
ness in the course of an investigation before either House, or
before a committee thereof, and who refuses to answer proper
questions put to him, by the House or by the committee
under the order of the House. This latter is not strictly
punishment for the contempt, because in such a case the re-
cusant witness may release himself from confinement by
answering, but it is a necessary and proper exercise of the
authority of the House to compel the disclosure of all facts
within the knowledge of any witness which affect the order,
the dignity, or the purity of its legislation. These general
rules are well settled by the authorities.' As we shall
presently see this power to punish a witness for contempt in
> 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. txtt.
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,
<w to produce and deliver up certified or sworn copies of the same in case
they may be official papers, such person shall be liable to all the penal-
ties prescribed in section one hundred and sixteen. All papers thus
548 APPENDIX. CK>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
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