Imágenes de páginas
PDF
EPUB

§ 156. In the same case it was held that a return which showed one hundred and fifty two votes for Niblack, and none for Walls, might be impeached by parol proof that forty-two votes were in fact cast and counted out for the latter. And the committee refused to allow Mr. Niblack the votes shown by the return, and to Mr. Walls the forty-two votes shown by evidence aliunde to have been cast for him. On this point the committee said:

"It is suggested by counsel that we might allow the one hundred and fifty-two votes which, according to this return, were cast for contestant, and also allow the sitting member the forty-two votes which are shown to have been cast for him and not returned. But the committee hold, that it having been shown that the return is fraudulent and false, in a matter so material as the suppression altogether of the whole of the sitting member's vote, it cannot be received for any purpose.

§ 157. In the same case the returns from Maintee county were objected to, for the following reason:

"Because the returns made by the county board, which, by the statute, are required to be duplicates, are not such. One return states that the board met and canvassed the votes "on the 29th day of November, 1870," while the other states that the board met and canvassed the vote "on the 1st day of December, 1870," and the former is dated November 29, and the latter December 1."

But this objection was overruled, the committee being of the opinion that the difference of one day between the dates of the two papers was not material.

§ 158. We have stated in another connection the rule, that where a certificate is by law required to be made by a board of officers composed of three or

more persons, it is sufficient if a majority of such board join in such certificate. But it was held in Niblack vs, Walls, supra, that if less than the majority sign, the certificate is not good. Upon this point the committee say:

"The statute of Florida requires that the returns shall be signed by the judge of the county court, the clerk of the circuit court, and one justice of the peace.

The return from this county, relied upon as proof of the vote of the county, is signed by but one of these three officers, the county judge.

The committee are of opinion that where the law requires the certificate to be made by three officers, a majority at least must sign, to make the certificate evidence.

This is not merely a technical rule; it is substantial, because the refusal or failure of a majority of the board to sign the return raises a presumption that it is not correct.

It is fair to infer that if it had been free from objection, a majority of the board at least would have signed it.

It is enough, however, to say that the law requires the certificate of the three officers, and all the authorities agree that at least two must certify or the certificate is inadmissible." And see to the same effect Perry vs. Whitaker, 71 N. C., 475.

§ 159. A statute providing that two ballot boxes be kept at each poll, one for the reception of ballots for representative in Congress, and the other for the reception of ballots for state officers, was held to be directory only, in the case of Boyden vs. Shober, [2

Bartlett, 904,] in which case the report of the committee has this language:

"It is said that the law of North Carolina, rightly construed, required that two ballot boxes should have been kept at each poll, and that all ballots for members of Congress should have been deposited in one, and all ballots for electors for President and Vice President in the other.

"There seems to be some doubt as to the true construction of the statute of North Carolina, but assuming that the construction contended for by contestant is correct, we are of opinion that the statute is directory only, and that the failure to provide two ballot boxes, and the deposit of all the ballots in one box, did not render the election void, in the absence of fraud. If the ballots were freely cast, if they were honestly and fairly counted, and correctly returned, we should be unwilling to hold that a mere mistake of the election officers, as to whether the ballots should go into one box or two, should be allowed to defeat the will of the majority."

§ 160. In most of the States the law requires that county returns shall be forwarded to the secretary of State, by mail. The question has been raised whether under such a statute a return can be received and counted if sent by private conveyance. In Niblack vs. Walls, 42d Congress, the return from one of the counties which should have been sent by mail, was not only forwarded by private conveyance, but was addressed to, and received by, one of the candidates, and by him handed to the secretary of State. Under these circumstances the house ordered further evidence to be produced to show the

true state of the poll. And in Chavis vs. Clever, (2 Bartlett, 469,) it appeared that the statute required returns to be sent to the secretary of State "by special messenger." This provision of the statute was violated, and the return delivered to one Moore, an army sutler, and by him sent, by express, to the Governor of the territory, who delivered it to the secretary. These facts, together with some evidence, tending to show that the return was tampered with on the way, were deemed sufficient to exclude it. If, however, it be made to appear on the trial of a contested election case, that a return which has been sent in, in an irregular and unlawful way, has not been tampered with but is in fact the genuine return without alteration or amendment, duly signed and certified, it will not be rejected, because of its irregular transmission. It is the policy of the law to discountenance everything which affords an opportunity for evil-disposed persons to tamper with ballot boxes or returns, and for this reason the sound rule would probably be to require proof of the genuineness of all such returns as are transmitted through private, and unauthorized channels.

§ 161. The legislature of a State having once elected a Senator in Congress, cannot reconsider its action and elect another person afterwards. The moment the result is declared and the certificate of election signed, jurisdiction passes from the State legislature to the Senate of the United States, which latter body is to judge of all questions touching the election returns and qualifications of its members. On the 19th of January, 1833, Mr. Robbins was elected a senator from Rhode Island, for the term of

six years from March 4, 1834. His credentials were in due form. In October, 1833, the General Assembly of Rhode Island undertook to set aside this election, and to elect Mr. Potter, Senator, alleging that the body which had elected Mr. Robbins was not the legislature of Rhode Island. It was held, after much debate, that Mr. Robbins held the proper prima facie evidence of title to the seat, his credentials being in due form and of prior date to those of Mr. Potter, and he was accordingly sworn in pending the investigation. Mr. Robbins was ultimately confirmed in his seat. Potter vs. Robbins, (Cl. & H., 877.) Where, however, two bodies, each claiming to be the legislature of a State, have each chosen a Senator in Congress to represent such State, it is the duty of the Senate, in deciding between such claimants, to consider and determine which body was, in fact and in law, the legislature. (Spencer's case, 43d Congress.)

§ 162. A statute of Virginia in force in 1832, authorized the sheriff, in case the electors were so numerous that all could not be polled before sunsetting, or in case by rain, or the rising of water courses, many of the electors are hindered from attending, to adjourn the election "until the next day, and so from day to day, for three days, Sundays excluded, giving public notice thereof, by proclamation," &c. Under this provision it was contended that the polls might be adjourned from day to day, for three days, and that the first day is to be excluded in computing the three days. But it was held otherwise, the committee being of the opinion that the election could not be kept open for any purpose more than three

« AnteriorContinuar »