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(Evidence in contested election cases.)

or reject votes, they act judicially, it does not follow that their judicial power extends to other cases. It certainly does not, if they have committed to them no discretion in regard to the reception of other votes. In my opinion, they have no such discretion; with the exception of the cases to which reference has been made (viz: where the person offering his vote refuses to take the preliminary or appropriate final oath; or refuses to answer fully all the questions put to him by the inspectors; or has been convicted of bribery or any infamous crime; or has made, or is interested in, a bet or wager on the result of the election), there is no express authority given to the inspectors to reject any vote, and I regard it as entirely clear, that they have no such authority. The express authority given in these special cases would seem to exclude the idea of a general implied authority embracing all cases.

The course required by the statute to be pursued where the right of any person to vote is challenged, cannot be reconciled with any discretionary power of rejection vested in the inspectors. 1 Rev. Stat. 430, §§ 18-24. The inspectors are, first, to administer what is called the "preliminary oath," requiring the person offering the vote to answer such questions as shall be put to him touching his place of residence and qualifications as an elector; the statute then mentions several questions which are to be addressed to him by the inspectors, and authorizes such other questions as may tend to test his qualifications as a voter; if he refuse to take the oath, or to answer fully, his vote is to be rejected; but if he answer fully, the inspectors are required to point out to him the qualifications, if any, in which he shall appear to them deficient; if he still persist in his right to vote, and the challenge be not withdrawn, the inspectors are required to administer to him the general oath, in which he states in detail, and swears that he possesses all the qualifications which the constitution and laws require the voter to possess; if he refuse to take the oath, his vote is to be rejected. Is

(Evidence in contested election cases.)

not the inference irresistible, that if he take the oath, his vote shall be received? If his vote is to be rejected after he takes the oath, why not reject it before? As I construe the statutes, the inspectors have no discretion left to them in such a case (where the person offering the vote is not shown by a record to have been convicted of crime, or, by his own oath, to be interested in a bet upon the election), but must deposit the ballot in the box, whatever they may believe or know of the want of qualifications of the voter. They are required to act upon the evidence which the statute prescribes, and have no judicial power to pass upon the question of its truth or falsehood; nor can they act upon their own opinion or knowledge. Another section of the statute strongly confirms this conclusion; that section provides as follows: § 36. "It shall be the duty of each inspector to challenge every person offering to vote whom he shall know or suspect not to be duly qualified as an elector." It is evident, from this section, that the inspector has no power to reject the vote, even when he knows the person offering it not to be a voter; his duty is discharged by requiring the voter to submit to the examination, and to take the oath which the statute prescribes.

In the next place, it is insisted, without reference to the decision of the inspectors, that the only examination of the qualifications of the voter which is permitted, is that which is or may be made before his ballot is received. An argument of some force in favor of this position, is derived from the fact, that it does not appear that the courts of this state, upon the trial of actions like the present, have ever entered upon the investigation of the qualification of voters. This argument is substantially balanced by the absence of any refusal of the courts to do so, unless in a single case at circuit which has not been reported. The absence of precedents in favor of the action against returning officers, was strongly urged in the case of Ashby v. White, especially upon the argument in the

(Evidence in contested election cases.)

House of Lords, but it did not prevail, and I do not think the kindred argument is entitled to much consideration in this case.

The judgment, in cases of this kind, is required to be rendered "upon the right of the defendant, and also upon the rights of the party alleged to be entitled" to the office. Code, § 436. As was said by Bronson, J., in the case of People v. Vail, 20 Wend. 16, the action "reaches beyond those evidences of title which are conclusive for every other purpose, and inquires into and ascertains the abstract question of right." The greatest number of votes alone gives the right to an elective office in this state; and as no adjudication can be had to determine the lawfulness of votes, before they are received, that question must be open to examination by courts afterwards, or there is no power anywhere in the government to discriminate between those which are lawful and those which are unlawful; indeed, if the rule contended for by the plaintiff be adopted, the distinction between lawful and unlawful votes ceases to exist when they reach the ballot-box. This objection is not answered, by referring to the statutes requiring evidence of the right of the voter, before his vote can be received; it is only when the right to vote is challenged, that any evidence is required, and there is room for great frauds to be practised, as well to prevent challenges, as to render them ineffectual when made; the only evidence required, in any case, is the oath of the person offering his vote, nor is there any power (if the courts do not possess it) to deny to such oath the effect of honest and truthful testimony, although every one who hears it may know it to be false and fraudulent. Neither is it an answer to say, that the offender may be punished, as the government, if that were the only remedy, would have no means of defence against the direct results of such a fraud; I am unwilling to believe that, in a matter of such vital importance as the choice of all its elective officers, the state is thus exposed to assault.

(Evidence in contested election cases.)

The registry act was not in existence when the election now in question took place; but if it had been, it would not have changed the aspect of the present question. Its only effect in this respect is, to require from the voter two oaths instead of one, making the oath equally conclusive in each case. Laws 1859, ch. 380, § 5. It furnishes additional safeguards against the commission of frauds at elections, and may aid in securing the punishment of offenders, but it furnishes no means of protecting the government against the consequences of such frauds, and therefore, leaves the present question precisely where it stood before.

In England, on trials of this nature, the legality of the votes is always open to inquiry, as it certainly is, in this country, in suits involving the election of officers of private corporations. Cole on Quo Warranto 146-221; Ang. & Ames on Corp., ch. 4., § 9; 7 Cow. 153; 19 Wend. 635. The comparatively narrow limits within which the right of suffrage is confined in England, deprives the decisions of courts in that country, upon this question, of much of the influence which would be justly due to them upon other questions; and the decisions in corporation cases are still less directly applicable to that under consideration. Those cases, however, show that where the right to an office is in controversy, it is not, as a general rule, conclusively determined by the number of votes which the claimant may have received, but the further question whether the votes were legal, is open for consideration. Without deciding that question when it is presented, judgment cannot be rendered "upon the right" of the parties, as the statute requires. Code § 436. In contests in regard to elections to congress, the legality of the votes, as well as their number, has always been a subject of inquiry. Cushing Lex Parl. Am. § 198. And "I think a court and jury, with better means of arriving at truth, may pursue the same course." 20 Wend. 14.

The inconvenience which, it is supposed, may arise on

(Evidence in contested election cases.)

the trial of such questions, from the great number of witnesses which may be required, especially in trials relating to state officers, has been relied on as a reason why it should not be held, that courts can pass behind the ballotboxes, and try and determine the qualifications of the voters whose votes may have been received or rejected. This argument is certainly not without force, as cases may readily be imagined, where anything entitled to the name of a trial of the legitimate issues which such an action might present, would be literally impossible; but believing, as I do, that the statutes have unquestionably left this duty to the courts, no inconvenience which could be anticipated, would justify courts in declining to discharge that duty, as far as possible. The past experience of the government has not been such as to induce the court to pay much heed to this argument from inconvenience; so far as the books of reports show, there has been no case in the state, prior to this, where any such question has been presented, and this does not appear to have involved such a number of issues, or required the examination of such a number of witnesses, as to render the prospect of such trials alarming. But if this were otherwise, the remedy would belong to the legislature, and not to the courts. A rule of pleading requiring the parties to specify the votes objected to, and the grounds of objection, or a rule of practice requiring an exchange of notices to the same effect, and the limitation of the parties, in their proof, to the cases and grounds so specified (as is the practice in England, in regard to contested parliamentary elections), would go far to remove the difficulty, if it should be found to exist. Roe on Elections, part 3, ch. 4. A similar practice is adopted when elections to congress are contested. 9 Stat. 568, § 1 (1 Bright. Dig. 254, § 14, and note a). My conclusion, therefore, is, that the judge decided correctly at the trial, that evidence was admissible to show that votes received and counted for either of the parties, were given by persons who were not qualified electors.

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