days. Votes cast on the fourth day after an adjournment from the third, were accordingly excluded. [Draper vs. Johnston, Cl. & H., 702.] It was also held in the same case that as to the regularity of the appointment of election officers, it is sufficient that they acted under color of authority, and that no other persons claimed the right.

§ 163. Under a statute requiring that separate boxes shall be kept for the deposit of ballots for State officers and for members of Congress, the voter must hand in both his tickets at one and the same time, and having once voted for State officers, and been recorded as voting, he cannot afterwards come forward and claim the right to vote for representative in Congress. [Draper vs. Johnson, Cl. & H., 711.]

In the same case, it was held that the presumption is that the officers of election have taken the oath required by law, until the contrary is shown. We have elsewhere endeavored to show that the ruling in this case, and in some others, that a failure to take the oath required by law to be taken by officers of the election, of itself, vitiates the election, is errone

ous:

§ 164. The manner of electing United States Senators is, in the absence of congressional action, to be prescribed in each State by the legislature thereof. A rule adopted by such a legislature, providing that “a majority of all the members elect composing the two houses of the general assembly, shall be necessary to determine all elections devolving upon that body" is a legitimate exercise of its power to regulate the manner of such elections. And under this rule,

where there were twenty-nine votes cast in the joint convention for David L. Yulee, and twenty-nine blank, it was held that there was no election. [Yulee vs. Mallory, 1 Bartlett, 608.]

§ 165. Under that clause of the constitution providing that senators may be "chosen by the legislature" of each State, an election of senator, to be valid, must be participated in by both houses of the legislature in their organized capacity. It is not enough that a majority of the members of each should participate. [Case of Harlan, 1 Bartlett, 621. Case of Bright and Fitch, do. 629.]

§ 166. In accordance with the rule, that the errors of a returning officer shall not prejudice the rights of innocent parties, it has been held that where it was the duty of the presiding officer to return the votes, sealed up, a return of them, unsealed, in the absence of any proof or suspicion of fraud is good. Also, that where the statute prescribes the form of a certificate of the votes given to be executed by an officer of the election, it is sufficient if the certificate is substantially according to such form, and a literal following of the form is not required. Also, that if the presiding officer, by mistake, insert the wrong name in his return of persons voted for, the error may be corrected. (Mallory vs. Merrill, Cl. & H., 329.) And in same case it was held that votes fairly given and not returned at all, may be proven and allowed. And see also Colden vs.

Sharpe, (Cl. & H., 369.)

§ 167. The same principle was recognized and enforced by the house of Representatives of the United States in Root vs. Adams, (Cl. & H., 271,)

where it was held that the error of a clerk in incorrectly spelling the name of one of the candidates in making the return of the election, should be corrected by the house as soon as ascertained. And when, by such correction, it was made apparent that the contestant had a majority of the legal votes, he was admitted to the seat.

§ 168. And in Guyon vs. Sage, (Cl. & H., 348) the house corrected a mistake in the inspectors, return, by which the word "junior" was omitted when it ought to have been inserted. There are, of course, two kinds of errors and mistakes, which may occur in making up the returns of an election, viz; such as may be corrected from what appears upon the face of the record, without a resort to extrinsic evidence, and such as cannot be so amended. In the case of a mistake of the former kind, it may be corrected by the court or tribunal trying the contest, as soon as discovered; but if a mistake occur which cannot be corrected by the record,-that is to sayone which is not apparent upon the face of the record, evidence aliunde is admissible, and should always be resorted to to correct it, and to establish the very truth of the matter.

§ 169. In the case of Sundry Citizens vs. John Sargeant, (Cl. & H., 516,) it appeared that at the election in the second congressional district of Pennsylvania, in October, 1826, John Sargeant and Henry Horn had the highest and an equal number of votes. The Governor of Pennsylvania seems to have considered the result as leaving the office vacant, but did not issue writs for a new election until Messrs. Sargeant and Horn had each informed him in writ

ing that they released all claim to the seat. Thereupon a new election was ordered, and at that election Mr. Sargeant was duly chosen. Subsequently certain citizens petitioned the house to give the seat to Mr. Horn, on the ground that he was in fact chosen at the first election. But it was held that he had waived his claims, and voluntarily relinquished his rights, whatever they may have been, under the first election. (d.)

§ 170. The case of Reed vs. Corden, (Cl. & H., 353,) presented the important question whether a State has the constitutional power to provide, that in case of a tie between two candidates for Representative in Congress, the question which of the two shall be the Representative, may be determined by lot. It was held that the statute of Maryland, authorizing the Governor and Council, in such a case, to proceed to decide by lot, which of the two shall receive the certificate, and be entitled to the seat, was unwarranted by the constitution, and that the record of such a decision was not admissible in evidence. This decision was put upon two grounds,

1. That the house of Representative is composed of members chosen every second year, by the people of the United States, and that the law of Maryland in effect gave the choice to the Governor and Council of that State, in case of a tie, and

2. That the house being by the Constitution "the judge of the election returns, and qualifications of its own members," it can never sanction the doctrine.

(d.) But it is very doubtful whether the relinquishment of claim to the seat here referred to should have been regarded as either legal or binding. The constituency were chiefly interested, and they were not consulted.

that any State can confer upon any officer or tribunal, power to decide a question of this kind. The committee seemed to be of opinion that in case of a tie, there is no election by the people, and no certificate of election should be given by the State authorities to any one, and this is doubtless the correct rule. The Representative must be chosen by the people. If an equal number of votes are given to each candidate, there is no choice, and the only reinedy is in a new election.

§ 171. The failure or refusal of the proper officer to issue a certificate of election to a person duly elected to an office, cannot operate to deprive such person of his rights. The certificate or commission is the best, but not the only evidence of an election, and if that be refused, secondary evidence is admissible. (Richard's case, Cl. & H., 95.) Where, therefore, the Governor of Tennessee claiming that the State had seceded from the Union, refused to certify the result of an election for Representatives in the Congress of the United States, it was held that other proof of such election was admissible, and that the house being satisfied from such proof that claimant was elected, he should be admitted. (Clement's Case, 1 Bartlett, 266.)

§ 172. When the people of an organized territory have been empowered by Congress to form a Constitution preparatory to admission into the Union, they may, in anticipation of such admission, elect representatives in Congress, who, in the event of the admission of such territory as a State, will be entitled to their seats. The act of admission relates back to, and legalizes every act of the territorial au