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(Majority for disqualified person.)

Under institutions such as ours are, there is even greater reason for holding that a minority candidate is not entitled to the office, if he who received the largest number of votes is disqualified.

We are not informed that there has been any decision, strictly judicial, upon the subject; but in our legislative bodies the question has been determined. It was determined against a minority candidate, in the legislature of Kentucky, in a case in which Mr. Clay made an elaborate report, and was sustained. In 1793, Albert Gallatin, elected a senator from this state, was declared by the senate of the United States disqualified, because he had not been a citizen of the United States nine years, and his election was declared void for that reason, but the seat was not given to his competitor; nobody supposed the minority candidate was elected. There have been several other cases of contested elections in which the successful candidates were decided to have been disqualified, and denied their offices. John Bailey's case is one of them: he was elected to congress from Massachusetts, and refused his seat, in 1824; but neither in his case, nor in any other with which we are acquainted, were the votes given to the successful candidate treated as nullities, so as to entitle one who had received a less number of votes to the office.

There is a class of cases in England, apparently, but not really, asserting otherwise. The earliest of them are referred to by Mr. Buller, in his argument in Rex v. Monday, Cowp. 530; they were followed by Rex v. Hawkins, 10 East 211, and Rex v. Parry, 14 East 549; in these cases it is said, that if sufficient notice is given of a candidate's disqualification, and notice that votes given for him will be thrown away, votes subsequently cast for him are lost, and another candidate may be returned as elected, if he has a majority of good votes, after those so lost are deducted. There is more reason for this in England, where the vote is vivâ voce, and the elective franchise belongs to but few, than here, where the vote is by ballot, and the

(Majority for disqualified person.)

franchise well-nigh universal. In those cases, the notice was brought home to almost every voter, and the number of electors was never greater than three hundred, and generally not more than two dozen. Besides, a man who votes for a person with knowledge that the person is incompetent to hold the office, and that his vote cannot, therefore, be effective-that it will be thrown away-may very properly be considered as intending to vote a blank, or throw away his vote. But the present relator suggests no such case. He does not even aver that, if the votes given for Cluley were thrown out, he received a majority, though doubtless such was the case. He has, therefore, exhibited no such interest as entitles him to be heard.

On the argument, we were told that in Rex v. Godwin, 1 Douglas 382, it was held, that the rival candidate was the most proper relator; an examination of the case, however, shows this to be a mistake. The rival candidate was the relator, but he received a majority of the votes; doubtless, in England, when the information is against a burgess or alderman of a borough, a corporator is held a fit relator; he has an interest. Our case of Commonwealth v. Small, 26 Penn. St. R. 31, cited in support of the suggestion, instead of being any real support, is adverse to it; the relator was, it is true, a rival candidate, but his suggestion was not supported for that reason, but because there had been a subsequent election, at which he had been elected. The court put his right to intervene expressly on the ground. of that subsequent election: said Lowrie, J., "the relator shows sufficient evidence of title in himself to authorize him to institute this proceeding; he acquired it at a subsequent election, and if that is not contested on any other ground than the supposed validity of the prior election, then, of course, he is entitled to the office." The plain inference from this is, that had it not been for the second election, he would have been an incompetent relator.

It need only be said in regard to the act of April 13th, 1840, that the relator referred to in it, is a person entitled

(Majority for disqualified person.)

to the office, if judgment be given against the party in possession.

After what has been said, it will be seen, that we are of opinion, J. Y. McLaughlin has no such interest as entitles him to be heard in a writ of quo warranto; the question which he seeks to raise is a public one exclusively, and it can be raised only at the instance of the attorney-general.

Writ of quo warranto denied.

THOMPSON, C. J., dissented.

The doctrine of the principal case is sustained by the decision of the supreme court of California, in Saunders v. Haynes, 13 Cal. 145; in that case, Baldwin, J., who delivered the opinion of the court, says: "An election is the deliberate choice of a majority or plurality of the electoral body; this is evidenced by the votes of the electors; but if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no means follows, that the next to him in the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the votes, and who never could have been elected at all, but for this mistake. The votes are not less legal votes because given to a person in whose behalf they cannot be counted; and the person who is next to him on the list of candidates, does not receive a plurality of votes, because his competitor was ineligible. The votes cast for the latter, it is true, cannot be counted for him; but that is no reason why they should, in effect, be counted for the former, who, possibly, could never have received them. It is fairer, more just, and more consistent with the theory of our institutions, to hold the votes so cast as merely ineffectual for the purpose of an election, than to give them the effect of disappointing the popular will, and electing to office a man whose pretensions the people had designed to reject." The same point was ruled by the supreme court of Wisconsin, in State v. Giles, 1 Chand. 112; and in State v. Smith, 14 Wis. 497. And see Opinion of the Judges, 38 Maine 597; State v. Boal, 46 Mo. 528; Cush. Elect. Cas. 496, 576. The election of a disqualified person, though voidable, is not ipso facto void. State v. Anderson, Coxe 318.

(Majority for disqualified person.)

On the contrary, the English decisions are unanimous that, if the electors have notice of the disqualification of a candidate, every vote given for him afterwards, will be thrown away, and considered as not having been given at all; and consequently, the candidate having the next highest number of votes will be elected. Rex v. Monday, Cowp. 537; Rex v. Hawkins, 10 East 211; Claridge v. Evelyn, 5 B. & Ald. 81; Rex v. Coe, Heywood 361; Rex v. Blissell, Ibid. 360; Rex v. Parry, 14 East 549; Rex v. Bridge, 1 M. & S. 76; Regina v. Coaks, 28 Eng. L. & Eq. 304; 7 Q. B. 406; Cush. Lex. Parl. Am., §§ 175-9; 1 Willc. Corp. § 547; 2 Kyd Corp. 11-12. And this view of the law has been adopted by the supreme court of Indiana, in Gulick v. New, 14 Ind. 93, where the court say, that votes cast, or attempted to be cast, for an ineligible candidate, are ineffectual for every purpose; they have no more effect, in a legal point of view, than if cast for a dead person, or for one who never had a being. To the same effect is Carson v. McPhetridge, 15 Ind. 327; and Stewart v. Hayes, in the circuit court of Stephenson county, Illinois, 3 Chicago Leg. News 117. And see Commonwealth v. Read, ante 129. With all these conflicting authorities upon the question, it seems strange that the learned judge should have said in Commonwealth v. Cluley, "we are not informed that there has been any decision, strictly judicial, upon the subject." The omission to notice them certainly detracts from the authority of the case.


In the Supreme Court of Illinois.



[Proof of qualification.]

In Illinois, if a person offering to vote take the oath prescribed by law, it is imperative upon the judges to receive his vote, unless the oath be proved to be false.

Every white male inhabitant, of the age of twenty-one years, who has resided in the state six months immediately preceding any general election, is a qualified elector; the question of citizenship does not enter into the qualification.

Appeal from the Circuit Court of Jo Daviess county. This was an action of debt qui tam, to recover a penalty of $100, for the alleged misconduct of Thomas Spragins, the defendant, as judge of an election held in Jo Daviess county, in August 1838, in receiving the vote of one Jeremiah Kyle, an unnaturalized alien.

The case was submitted to the court below upon an agreed statement of facts, whereby it appeared that the defendant, as judge of an election held on the 6th August 1838, for the precinct of Galena, in the county of Jo Daviess, received the vote of one Jeremiah Kyle, an unnaturalized alien; that Kyle had resided in the state, and in the county of Jo Daviess, more than six months immediately preceding such election; and that the defendant received and counted the vote of said Kyle, knowing that he was not a citizen of the United States, or of this state, and believing him not to be a qualified voter; it was agreed, that if the court should be of opinion that Kyle was not a qualified voter, according to the constitution and laws of the state, judgment should be entered against the defendant for $100, one-half for the use of the plaintiff and

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