purpose for which it was called.1 Errors of judgment are inevitable, but fraud, intimidation, and violence the law can and should protect against. A mere casual affray, however, or accidental disturbance, without any intention of overawing or intimidating the electors, cannot be considered as affecting the freedom of the election ;2 nor in any case would electors be justified in abandoning the ground for any light causes, or for improper interference by others where the officers continue in the discharge of their functions, and there is opportunity for the electors to vote.3 And, as we have already seen, a failure of an election in one precinct, or disorder or violence which prevent a return from that precinct, will not defeat the whole election, unless it appears that the votes which could not be returned in consequence of the violence would have changed the result. It is a little difficult at times to adopt the true mean between those things which should and those which should not defeat an election; for while on the one hand the law should seek to secure the due expression of his will by every legal voter, and guard against any irregularities or misconduct that may tend to prevent it, so, on the other hand, it is to be borne in mind that charges of irregularity and misconduct are easily made, and that the dangers from throwing elections open to be set aside or controlled by oral evidence, are perhaps as great as any in our system. An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election; but as it is generally impossible to arrive at any greater certainty of * result by resort to oral evidence, public pol- [* 622] icy is best subserved by allowing the election to stand, 1 Where one receives a majority of all the votes cast, the opposing candidate cannot be declared elected on evidence that legal voters sufficient to change the result offered to vote for him, but were erroneously denied the right; but the election may be declared to have failed, and a new election be ordered. Renner v. Bennett, 21 Ohio, N. s. 431. See also Matter of Long Island R. R. Co., 19 2 Cush. Leg. Assemb. § 184. 8 See First Parish in Sudbury v. Stearns, 21 Pick. 148. 4 Ex parte Heath, 3 Hill, 42. See ante, p. *616 and note. and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future. The Canvass and the Return. If the election is purely a local one, the inspectors who have had charge of the election canvass the votes and declare the result. If, on the other hand, their district is one precinct of a larger district, they make return in writing of the election over which they have presided to the proper board of the larger district; and if the election is for State officers, this district board will transmit the result of the district canvass to the proper State board, who will declare the general result. In all this, the several boards act for the most part ministerially only, and are not vested with judicial powers to correct the errors and mistakes that may have occurred with any officer who preceded them in the performance of any duty connected with the election, or to pass upon any disputed fact which may affect the result. Each board is to receive the returns transmitted to it, if in due form, as correct, and is to ascertain and declare the result as shown by such returns ; and if other matters are introduced into the return than those which the law provides, they are to that extent unofficial, and such statements must be disregarded. If a district or State board of can 2 Ex parte Heath, 3 Hill, 42; Brower v. O'Brien, 2 Ind. 423; People v. Hilliard, 29 Ill. 413; People v. Jones, 19 Ind. 357 ; Ballou v. York County Com'rs, 13 Shep. 491; Mayo v. Freeland, 10 Mo. 629; Thompson v. Circuit Judge, 9 Ala. 338; People v. Kilduff, 15 Ill. 492; O'Farrell v. Colby, 2 Minn. 180; People v. Van Cleve, 1 Mich. 362; People v. Van Slyck, 4 Cow. 297; Morgan v. Quackenbush, 22 Barb. 72; Dishon v. Smith, 10 Iowa, 212; People v. Cook, 14 Barb. 259, and 8 N. Y. 67; Hartt v. Harvey, 32 Barb. 55; Attorney-General v. Barstow, 4 Wis. 567; Attorney-General v. Ely, 4 Wis. 420; State v. Governor, 1 Dutch. 331; State v. Clerk of Passaic, 1 Dutch. 354; Marshall v. Kerns, 2 Swan, 68; People v. Pease, 27 N. Y. 45; Phelps v. Schroder, 26 Ohio St. 549; State v. State Canvassers, 36 Wis. 498; Opinion of Justices, 53 N. H. 640; State v. Cavers, 22 Iowa, 343; State v. Harrison, 38 Mo. 540; State v. Rodman, 43 Mo. 256; State v. Steers, 44 Mo. 223; Bacon v. York Co., 26 Me. 491; Taylor v. Taylor, 10 Minn. 107; Opinion of Justices, 64 Me. 588. 8 Ex parte Heath, 3 Hill, 42. Returns void on their face may be rejected. State v. State Canvassers, 36 Wis. 498. But, if not void on their face, the election board to which they are returned have no jurisdiction to go behind them and inquire into ques vassers assumes to reject returns transmitted to it on.other grounds than those appearing upon its face, or to declare persons elected who are not shown by the returns to have received the requisite plurality, it is usurping functions, and its conduct will be reprehensible, if not even criminal. The action of such boards is to be carefully confined to an examination of the papers before them, and a determination of the* result [* 623] therefrom, in the light of such facts of public notoriety connected with the election as every one takes notice of, and which may enable them to apply such ballots as are in any respect imperfect to the proper candidates or offices for which they are intended, provided the intent is sufficiently indicated by the ballot in connection with such facts, so that extraneous evidence is not necessary for this purpose. If canvassers refuse or neglect to perform their duty, they may be compelled by mandamus;1 though as these boards are created for a single purpose only, and are dissolved by an adjournment without day, it has been held that, after such adjournment, mandamus would be inapplicable, inasmuch as there is no longer any board which can act.2 But we should think the better doctrine to be, that if the board adjourn before a legal and complete performance of their duty, mandamus would lie to compel them to meet and perform it. But when the board themselves have once performed and fully completed their duty, they have no power afterwards to reconsider their determination and come to a different conclusion.1 Phelps tions of fraud in the election. 1 Clark v. McKenzie, 7 Bush, 523; Burke v. Supervisors of Monroe, 4 W. Va. 371; State v. County Judge, 7 Iowa, 186; Magee v. Supervisors, 10 Cal. 376; Kisler v. Cameron, 39 Ind. 488; Commonwealth v. Emminger, 74 Penn. St. 479. 2 Clark v. Buchanan, 2 Minn. 346; People v. Supervisors, 12 Barb. 217; State v. Rodman, 43 Mo. 256. 50 To this effect is State v. Gibbs, 13 Fla. 55. And see People v. Board of Registration, 17 Mich. 427; People v. Board, &c. of Nankin, 15 Mich. 156; Lewis v. Commissioners, 16 Kan. 102. Hadley v. Mayor, &c., 33 N. Y. 603; State v. Warren, 1 Houston, 43; State v. Harrison, 38 Mo. 510. If they recount and give the certificate to another, such action is a mere nullity. Bowen v. Hixon, 45 Mo. 340; People v. Robertson, 27 Mich. 116; Opinions of Justices, 117 Mass. 599; State v. Done wirth, 21 Ohio, N. s. 216. Contesting Elections. As the election officers perform for the most part ministerial functions only, their returns, and the certificates of election which are issued upon them, are not conclusive in favor of the officers who would thereby appear to be chosen, but the final decision must rest with the courts. This is the general rule, and the exceptions are of those cases where the law under which the canvass is made declares the decision conclusive, or where a special statutory board is established with powers of final decision.2 Whatever may be the office, an election to it is only made by the candidate receiving the requisite majority or plurality of the legal votes cast; and whoever, without such election, intrudes into an office, whether with or without the formal evidences of title, may be ousted on the proper judicial inquiry. The general 3 1 State v. Justices of Middlesex, Coxe, 244; Hill v. Hill, 4 McCord, 277; Wammack v. Holloway, 2 Ala. 31; State v. Clerk of Passaic, 1 Dutch. 354; Marshall v. Kerns, 2 Swan, 68; Attorney-General v. Barstow, 4 Wis. 567; Attorney-General v. Ely, 4 Wis. 420; People v. Van Cleve, 1 Mich. 362; People v. Higgins, 3 Mich. 233; Dishon v. Smith, 10 Iowa, 212; State v. Johnson, 17 Ark. 407; State v. Fetter, 12 Wis. 566; State v. Avery, 14 Wis. 122; People v. Jones, 20 Cal. 50; Newcum v. Kirtley, 13 B. Monr. 515; Commonwealth v. Jones, 10 Bush, 725; People v. Seaman, 5 Denio, 409; People v. Cook, 8 N. Y. 67; People v. Matteson, 17 Ill. 167; Taylor v. Taylor, 10 Minn. 107; Calaveras County v. Brockway, 30 Cal. 325. An illegal election may be contested and set aside, even though but one person was voted for. Ex parte Ellyson, 20 Grat. 10. 2 See Grier v. Shackleford, Const. Rep. 642; Batman v. Megowan, 1 Met. (Ky.) 533; State v. Marlow, 15 Ohio, N. s. 114; People v. Goodwin, 22 Mich. 496; Baxter v. Brooks, 29 Ark. 173; s. c. 11 Am. Law Rev. 534. For the proceedings in the State of New York in the canvass of votes for governor in 1792, where the election of John Jay to that office was defeated by the rejection of votes cast for him for certain irregularities, which, under the more recent judicial decisions, ought to have been overlooked, see Hammond's Political History of New York, ch. 3. The law then in force made the decision of the State canvassers final and conclusive. The Louisiana Returning Board cases will readily occur to the mind; but those must be regarded as standing by themselves, because the legislative provisions under which they were had were unlike any others known to our history, and assumed to confer extraordinary and irresponsible powers. 8 In some cases it is provided by law, that, if there is a tie vote, the two persons receiving an equal and the highest number shall cast lots, and the election shall be thereby determined. The drawing of lots, however, would not preclude an inquiry, at the suit of the State, into previous irregularities. People v. Robertson, 27 Mich. 116. 4 Whether jury trial in the case of contested elections is matter of right, doctrine is here stated; but in one important case it was denied that it could apply to the office of chief executive of the State. The case was one in which the incumbent was a candidate for re-election, and a majority of votes was cast for his opponent. Certain spurious returns were, however, transmitted to the State canvassers, which, together with the legal returns, showed a plurality for the incumbent, and he was accordingly declared chosen. Proceedings being taken against him by quo warranto in the Supreme Court, he objected to the jurisdiction, on the ground that the three departments of the State government, the legislative, the executive, and the judicial, were equal, co-ordinate, and independent of each other, and that each department must be and is the ultimate judge of the election and qualification of its own member or members, subject only to impeachment and appeal to the people; that the question, who is rightfully entitled to the office of governor, could in no case become a judicial question; and that as the Constitution provides no means for ousting a successful usurper of either of the three departments of the government, that power rests exclusively with the people, to be exercised by them whenever they think the exigency requires it.1 There is a basis of truth in this argument: the executive of the State cannot be subordinated to the judiciary, and may, in general, refuse obedience to writs by which this may be attempted.2 But when the question is, who is the executive of the State, the judges have functions to perform, which are at least as important as those of any other citizens, and the fact that they are judges can never be a reason why they should submit to a usurpation. A successful usurpation of the executive office can only be accomplished with the acquiescence of the other departments; and the judges, for the determination of their own course, must, in some form, inquire into or take notice of the facts. In a controversy of such momentous import, the most formal and deliberate inquiry that the circumstances will admit of is alone excusable; and, when made and declared, the circumstances must be extraor seems to be made a question. That it is, see State v. Burnett, 2 Ala. 140; People v. Cicotte, 16 Mich. 283, dictum, People v. Albany, &c. R. R. Co., 57 N. Y. 161. That it is not, is held in Ewing v. Filly, 43 Penn. St. 384; Commonwealth v. Leech, 44 Penn. St. 332; State v. Johnson, 26 Ark. 281. It is, however, conceded in Pennsylvania that, in a proceeding to forfeit an office, jury trial is of right. 1 Attorney-General v. Barstow, 4 Wis. 567. 2 See ante, p. *116. |