"they shall forthwith notify" the ward officers, "who shall forthwith make a new and additional 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 required by law to make their returns or declare the result of the election in said city." They cannot be made after the result is declared, and their value must depend upon their being made by the returning officers, without delay. (Sleeper vs. Rice, 1 Bartlett, 472. See opinion of Justices, 117 Mass., 599.)

§ 98. 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 vs. Moore, (Cl. & H., 715,) the credentials presented were signed by the sheriff 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 been withheld by the sheriff having it in charge, without any sufficient cause, and it is evident

that the house had good reason 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 sheriffs, 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 a board, is the certificate 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 be upon a canvass of the whole vote of the district. If a part of the vote is omitted and the certificate 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 a canvass of the whole vote would produce the same result.

§ 99. The act of Congress of May 31, 1870, (16 Stat. at Large, 145, Sec. 22,) provides 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 The United States vs. Clayton, in the Circuit Court of the United States for District of Arkansas, the question arose whether the Governor of a State is 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. (See American Law Register, Vol. 10, p. 739.) A demurrer was interposed which raised the question above suggested, and it was sustained, the Court (Dillon F.) 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.

§ 100. 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 alphabetical copy in connection with the original, will not affect the validity of the poll. (Hogan vs. Pile, 2 Bartlett, 281.)

§ 101. In the case last cited one of the grounds of contest was, that the County Court being authorized to fix the places of voting, and arrange the voting precincts, had performed 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 the law of Missouri having imposed upon the County Court the duty of establishing voting places, that Court had the right to fix tne number in its own discretion, and the exercise of that discretion cannot 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 election."

this.

No doubt the true rule is here indicated, and it is If the board or officer having the power to fix the voting places, shall fraudulently so arrange them as to disfranchise 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.

§ 102. 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 example, 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, prevented 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

be

part of the board or officers, whose duty it was fix suitable and convenient voting places, would Presumed, but if not, then the election should be

held void, upon the ground, that whatever in point

of fact prevents a fair and free election, whether so intended or not, must render the election null and void. (b.)

§ 103. Where the law requires that the polls shall be kept open until sunset, this is probably equivalent to declaring that they shall be closed at sunset, though upon this point the committee in Hogan vs. Pile, supra, refrained from expressing 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 cannot 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.

§ 104. The law is well settled that statute certifying officers 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. (Switzler vs. Anderson, 2 Bartlett, 374.) This rule of course applies to election returns, and

(b.) Probably, there should be an exception to this rule, in cases where the legislature, by law, fixes the places of voting, and where no other authority has power to alter or change them. It would, probably, not be competent to show that the legislature had not fixed enough polling places, or had not established them in the right places.