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(Irregularities will not vitiate the poll.)

to that return, the defendant is the assailant, and holds the affirmative; it will be shown, in another connection, that it should have been received by the county-canvassers; the legal presumption is in its favor. It is no answer to this, that the irregularities of the inspectors have rendered it impossible to detect the fraud. The decision of the learned judge, with respect to these irregularities, belongs to another exception; we are now upon the exception to his decision, refusing to submit to the jury, to find fraud, without evidence, in closing the polls and canvassing the votes in that district. This is quite a different matter from the question of irregularity, and must be kept distinct from it. The judge did not err in refusing the motion of the defendant's counsel in this respect.

2. On the refusal to submit to the jury whether the votes for Benjamin C. Welch, Jr., and Benjamin Welch, were intended for Benjamin Welch, Jr. What that decision, in reality, was, and the grounds of it, have already been shown; a few words more will be added. The court did not treat the question of the intention of the voters who deposited the defective ballots, as a question of law; it was treated throughout as a question of fact, to be established by the evidence. The ground taken by the judge was, that the intention of the voters to vote for Benjamin Welch, Jr., was prima facie established, and not attempted to be explained or contradicted, and there was, therefore, no question of fact for the jury; his decision was a mere direction or charge to the jury to find for the plaintiff with respect to those matters, and they found accordingly; the evidence was not withdrawn from them but, in truth, passed upon by them. It was not, indeed, submitted as an open, controverted question, or summed up by counsel; but when that intention of the voter was placed beyond dispute, as it was in this case, by the evidence, it became a pure and unmixed question of law, whether those defective ballots should, on this trial, be allowed to Benjamin Welch, Jr., or not. The result was the same as if the

(Irregularities will not vitiate the poll.)

judge had charged the jury that if they believed that the voters intended, by the defective ballots, to vote for Benjamin Welch, Jr., of which there was no doubt, those votes, in point of law, should be estimated by them to Mr. Welch.

It was unnecessary to decide that those defective ballots should have been allowed and canvassed to Benjamin Welch, Jr., by the state-canvassers. The court did not say, as matter of law, irrespective of the extrinsic facts proved, that Benjamin C. Welch, Jr., and Benjamin Welch, without the junior, meant Benjamin Welch, Jr.; it was the extrinsic evidence that made the intention of the voters obvious.

In my own opinion, the state-canvassers act ministerially, in the main, in making their certificate; they cannot be charged with error in refusing to add to the votes for Benjamin Welch, Jr., those which were given for Benjamin C. Welch, Jr., and Benjamin Welch, without the junior; they had not the means which the court possessed on the trial of this issue, of ascertaining, by evidence dehors the several county returns, the intention of the voters, and the identity of the candidate with the name on the defective ballots. The judicial power extends no further than to take notice of such matters of public notoriety, as that certain well-known abbreviations are generally used to designate particular names, and the like. It is enough, probably, to say that the legislature has not clothed, either the state officers, or the subordinate boards of inspection, with power to hear and determine, by means of evidence dehors the return, the intention of the voters. The strictness with which these boards should be held to the record before them, is dictated by sound policy and enlightened wisdom. Who would desire to see the close of every canvass followed by a rush of heated partisans, to disprove by their testimony the estimate made by the proper authority?

But the question whether the state-canvassers ought

(Irregularities will not vitiate the poll.)

to have allowed to Mr. Welch the defective ballots, is not, necessarily, involved in this case, if this court shall be of opinion, that on the trial of the cause, it was competent to go behind both the certificate and ballot-box, to ascertain the voter's intention in depositing the ballots in controversy. It has been strenuously insisted by the counsel for the appellant, that the court does not possess this power; he insists that the court can go no further in this action than to correct mistakes of the returning officers, and to prove facts which show the return to be false, and to make it such as it ought to have been made by the canvassers. Such errors, whether intentional or otherwise, no doubt, can be corrected by this action, and many of the cases referred to on the argument, did not require a more searching remedy. This question is of sufficient importance to be viewed upon principle and authority.

1. Upon principle. It is by the popular expression by the voters, through the ballot-box, that a title is derived to an elective office; the certificate of the board of canvassers is merely evidence of the person to whom a majority of the votes was given. The certificate may, indeed, be conclusive, in a controversy arising collaterally, or between the person holding it and a stranger; but when this proceeding is instituted in the name of the people, it loses its conclusive character, and becomes only prima facie evidence of the right. The pleadings in this case, it has already been shown, were so framed as distinctly to present the question, whether the ballots now in controversy were intended by the voters for Benjamin Welch, Jr.; if the issue thus tendered by the plaintiff was irrelevant, the defendant should have moved to strike it out; by taking issue upon it, and going down to trial and litigating the facts involved in it, he concedes its materiality. This concession, it is true, is not conclusive upon the court; but I think it was the intention of the Code, and certainly it was of the pleaders on both sides, that the issue should involve an inquiry into the right to the office

(Irregularities will not vitiate the poll.)

as derived from the highest source of popular sovereignty, and not merely the right derived from the certificate. It will be seen, that the pleadings in this case are essentially different from the precedents under the former practice in analogous proceedings. (See the forms in People v. Van Slyck, 4 Cow. 297.)

2. Upon authority. In the case of People v. Ferguson, 8 Cow. 102, decided in 1827, a new trial was granted by the supreme court, to enable the relator to prove on the trial of the issue, that votes given for H. F. Yates were intended by the voters for Henry F. Yates. That was an information in the nature of a quo warranto, to determine whether Ferguson or Yates was elected clerk of Montgomery county; if, on that trial, 14 ballots on which were written H. F. Yates were allowed to Henry F. Yates, he would be entitled to the office, instead of Ferguson, to whom the certificate was given by the canvassers. That case is exactly in point, and goes further, indeed, than is necessary in the one under consideration. The late Chief Justice Savage, in the course of his opinion in that case, says, you may look beyond the ballot-boxes for testimony as to the intention of the voter, and the question of intention is fairly for the jury. This doctrine was approved by the same court, in People v. Seaman, 5 Denio 409, decided in 1848, in a similar proceeding to test the title of the parties to the office of supervisor.

In the earlier case of People v. Van Slyck, 4 Cow. 297, an information in the nature of a quo warranto was brought to oust the defendant from the office of sheriff. It was insisted by the defendant's counsel, that the decision of the canvassers was conclusive, and could not be reviewed except by certiorari; and that their certificate could not be impeached in that way; but the court held, that the certificate was not conclusive; and on a special verdict, finding that the vote of one town had been improperly rejected by the county-board, which, if

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received, would have altered the result, they ousted the defendant. This case shows that the court may go behind the certificate; it shows also, that it is the election, and not the certificate of the canvassers, that gives the right to an office.

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In People v. Vail, 20 Wend. 12, the case of People v. Ferguson is expressly recognised as sound law; and Bronson, J., says, that in those legislative bodies which have the power to judge of their own members, it is the settled practice, when the right of the sitting member is called in question, to look beyond the certificate of the returning officers; "and I think," he observes, “a court and jury, with better means of arriving at the truth, may pursue the same course. We are not called upon to say that every possible question arising under the election. law, may be corrected in this way; it is enough, that the principle contained in People v. Ferguson sustains the ruling of the court below; that case has stood the scrutiny of more than a quarter of a century; and has neither been disturbed by the new constitution, nor the repeated revision of the election law; I see nothing in the present case that requires us to depart from it. Nor is there any danger to be apprehended to the security of our institutions by pursuing this practice. The right to an office is no higher than the right to life, liberty or property; there is no principle that should withdraw the former from the cognisance of a court and jury, to the exclusion of the latter; both will, indeed, be safe under the administration of the ordinary tribunals.

It now remains to notice the other questions of law which are presented by the record.

I. The learned judge decided, in his direction to the jury, that the votes given in the western district of the first ward of the city of Buffalo, were properly canvassed and allowed to Mr. Welch, notwithstanding the inspectors took the oath of office upon a book called "Watts's Psalms and Hymns," and not upon the Gospels, notwithstanding

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