A Treatise on the American Law of Elections - George Washington McCrary - Google Libros

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As to exclusion of by failure to open polls.

183. Meaning of the phrase "majority of voters of a county."

184. Effect of fraud by managers of election which does not effect

185. Discrepancy between number of ballots in box and the names on

186. Special election when not within the provisions of registry law.

187. Meaning of words "general election."

189. Effect of voting for one commissioner when two are to be elected.

Disregard of mere police regulations.

The right to elect county officers and to vote for state officers

cannot be taken from people of a county

192. Contracts for the purpose of corrupting conventions or primary

elections void.

193. Contract to assist a candidate for a consideration void.

A plurality of votes will generally elect.

198. As to expulsion of overseers from place of voting.

199. What irregularities and disregard of requirements of law will

vitiate elections.

As to mandatory and directory provisions of election laws.

201. Statutory regulation of Senatorial election.

202. Recognition of State government by Congress.

203. Joint meeting of legislature for election of senator may be ad-

CHAPTER FOUR-OF THE PRIMA FACIE RIGHT TO

AN OFFICE.

204. Of the right to office pending contest.

Form of credentials.

206. Certificate of election by whom signed.

207. In the absence of statute governor of State may certify election

of Representative in Congress.

208. What certificate must show.

209. Commission confers vested right.

210. But may be set aside on regular contest.

211. Governor cannot ordinarily go behind returns to investigate

fraud, nor revoke his commission.

213. Ministerial or executive officer cannot exercise judicial functions,

814. Cases where neither claimant holds certificate.

216. All that appears upon face of certificate to be considered.

218. Erroneous ruling in New Jersey case.

Canvass cannot be collaterally impeached.

220. Injunction will not lie to enjoin use of certificate of election on

ground of fraud.

221. Such certificate can only be attacked by regular contest.

222. But the qualifications of the holder of certificate may be inquired

223. Certificate of election does not ordinarily cover the ground of due

224. The holder of a certificate of election may voluntarily impeach it.

225. Recitals in a certificate may destroy its value.

CHAPTER FIVE.-OF ELIGIBILITY TO OFFICE AND

226. Qualification for federal and state offices. How fixed.

227. Qualifications of representatives in Congress.

228. State cannot add to or change.

229. Disqualification by conviction of infamous crime.

230. Acceptanee of office the duties of which require residence out of

231. Majority being given for ineligible candidate does not elect next

236. In what cases failure to elect a successor vacates office.

237. Vacancies in United States Senate. How filled.

238. Acceptance by member of Congress of disqualifying office.

239. Of acceptance by an officer of another incompatible office.

240. A commission in the army is an office under the United States.

241. Member of Congress elect may hold commission in the army,

until sworn in,

243. Accepting seat in Congress vacates office previously held.

244. How a member of Congress may resign.

245. Residence and citizenship as qualifications for office.

246. Nine years citizenship required as qualification for the office of

United States Senator.

247. Tenure. Senator under executive appointment.

249. Meaning of the word "inhabitant" as used in the Constitution.

250. A representative of this country abroad loses no rights of citizen-

251. The executive cannot, unless expressly authorized, declare an

252. The legislature cannnot add to qualifications to office.

253. What acts amount to the abandonment of an office.

Officer in general entitled to trial and conviction before removal.

255a. In what cases power of removal is incident to power of appoint-

255b. Record of proceedings to remove officers must show jurisdic-

256. Forfeiture of right to hold office by dueling.

Executive of State cannot anticipate a vacancy.

258. An alien not a voter cannot hold office.

259. Election for a part of a term void in so far as it relates to the

length of the term.

260. Formal acceptance of resignation not necessary.

260a. Resignation once completed cannot be withdrawn.

261. Tenure of an office not affected by death, resignation or removal

262. An election to be valid must be authorized by statute.

263. Of appointments by Governor to fill vacancy, and of rights of

263a. What are lucrative offices.

263b. Officer commissioned to hold from a given day is in office on

CHAPTER SIX.-PRACTICE AND EVIDENCE IN

CONTESTED ELECTION CASES.

264. Of quo warranto.

263. Of the practice of common law.

Claims of other claimants should be stated in the information.

267. Sitting member of legislative body not to vote in his own case.

268. Of the right of acting Vice President to vote on the impeach-

ment of the President.

269. The casting of illegal votes at an election will not necessarily

270. As to admissibility of declarations of illegal voters as to how

275. Parol evidence not admissible to prove contents of voting lis

276. Statute requiring notice of contest is mandatory.

277. As to preservation of ballots for the purpose of being used as

279. Recount of ballots.

281. Requisites of petition to contest an election under statute of

282. Immaterial allegations will be stricken out on motion.

283. Certainty to a common intent only required.

284. Amendment of pleadings.

Amendments should be made instanter.

285a. Statutory proceeding must be followed.

286. Failure of one of several precincts to hold an election.

287. Legislative body will not go behind returns in the first instance.

288. As to trial by jury in contested election cases.

290. Returns may be impeached upon a quo warranto.

291. Tally sheet admissible in evidence.

292. Poll list, though not signed, admissible in evidence.

Circumstantial evidence admissible to show for whom a voter has

294. Presumption in favor of legality of votes actually cast.

295. Jurisdiction in contested election cases.

296. Appointment in writing of person to deliver returns not necessary.

297. Illegal voter may be compelled to disclose for whom he voted.

298. Rule in cases where illegal votes are cast, and it cannot be ascer-

tained for whom they were cast.

301. As to compelling illegal voter to disclose for whom he voted.

302. As to what disregard of law will vitiate returns.

305. Failure of officers to be sworn not fatal, but in connection with

306. Ordinary rules of evidence apply.

307. Effect of statute authorizing any elector to contest.

308. Right of person elected to recover fees and emoluments from

809. Power of Congress to punish fraudulent registration in congres-
sional elections.

310. Great diligence required of sitting member in preparing for trial

812. Marked ballots not to be rejected unless statute so requires.

313. Federal authorities follow those of the State in construing State

constitution and laws.

814. As to officers authorized to take testimony in congressional con-
tests.

315. Names of illegal voters need not be stated in petition under law

As to compromise of contested election case.

317. Mandamus not the proper remedy for obtaining possession of an

318. Injunction will not lie to restrain counting of illegal votes or

issuing certificates of election.

319. But will lie to restrain the receipt of illegal votes in certain cases.

320. As to mandamus and quo warranto in election cases.

321. Mandamus will lie to compel but not to control action by board.

322. Will not lie when another adequate remedy is provided.

325. Has been granted to compel swearing in of person elected.

326. But not where there is a contest.

327. Mandamus granted to compel the issuance of certificate in cer-

328. And sometimes will be granted to compel performance of minis-

329. And to compel the recognition of person found entitled by judg-

ment and quo warranto.

330. And to compel an appointment in certain cases.

331. To compel the discharge of ministerial as contradistinguished

from judicial functions.

332. Will not lie to control discretionary functions.

333. In cases of inandamus decision of canvassers will be treated as

334. Judgment in mandamus not conclusive as to rights of contestants.

336. Mandamus will lie to compel registration of legal voters.

337. Mandamus will lie to compel inspectors to certify the results of

339. Proceeding under statute authorizing contest by "any candidate

340. Injunction will not lie to restrain recording of vote because of

341. Notice essential to validity of proceedings in contest.

342. As to mode of obtaining evidence in congressional contests.

343. Requisites of notice of contest under act of congress.

345. House of Representatives may send for primary returns if nec-

346. As to certainty required in notice of contest.

347. As to degree of diligence in preparing defense required of sitting

348. Act of congress regulating contests not imperative upon House

of Representatives.

349. Such act is directory only, but should be followed as a rule.

350. House of Representatives may of its own motion inquire as to

right of member to his seat.

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