holding it and a stranger, conclusive, but in a proper action, properly entitled, to impeach it and try the title to the office, it is only prima facie evidence of the right. See people vs. Cook, 8 N. Y., 67. People vs. Vail, 20 Wend., 12. People vs. Jones, 20 Cal., 50. Commonwealth vs. Co. Commissioners, 5 Rawl, 75.

§ 220. The merits of a contested election cannot be taken from the proper tribunal authorized by law to try it, and brought for adjudication into a court of equity, upon a bill to enjoin the party holding the certificate of election from using it, upon the ground that it was procured by fraud. This doctrine is strikingly illustrated by the decision of the Supreme Court of Pennsylvania in Hulseman vs. Rems (41 Pa. State, R. 396) which was a petition for an injunction upon this ground. The court, although satisfied that the officer in question held a certificate based upon the grossest of frauds, amounting even to the actual forgery of some of the returns, yet refused to interfere by injunction, and for the following among other reasons: "If," says the court, "in this way we suffer a gross fraud to pass through our hands without remedy, it is not because we have any mercy on the fraud, but because we cannot frustrate it by any decree of ours without an act of usurpation. Another tribunal is appointed to administer the remedy and we believe that on proper application, it will administer it rightly according to the evidence it may have; and if we had any doubts of this we should still not be justified in interfering." And see Moulton vs. Reid, 54 Ala., 320.

§ 221. There can be no doubt but that a certificate of election regular in form, and signed by the

proper authority, constitutes prima facie evidence of title to the office, which can only be set aside by such proceedings for contesting the election as the law provides. (Commonwealth vs. Baxter, 35 Penn. St. R. 263. Kerr vs. Trego, 47 Pa. State R. 292. The State vs. The Governor, 1 Dutch [N. 7] 331. The certificate whether rightfully or wrongfully given, confers upon the person holding it, the prima facie right to the office. (People vs. Miller, 16 Mich. 56. Crowell vs. Lambert, 10 Minn. 369. State vs. Sherwood, 15 Minn. 221. State vs. Churchill, ibid, 455.] If, however, the certificate contains upon its face a recital of facts, and these facts show affirmatively that the party holding it was not duly elected, it may be disregarded. (Hartt vs. Harvey, 32 Barbour, 61.

§ 222. The regular certificate of election properly signed, is, as we have seen, to be taken as sufficient to authorize the person holding it to be sworn in. It is prima facie evidence of his election and the only evidence thereof which can be considered in the first instance, and in the course of the organization of a legislative body. But there are questions which may be raised, touching the qualifications of a person elected, which may be investigated and decided as a part of the prima facie case, and as preliminary to the swearing in of the claimant. Thus, if a specific and apparently well grounded allegation be presented to the House of Representatives of the United States, that a person holding a certificate of election, is not a citizen of the United States, or is not of the requisite age, or is for any other cause ineligible, the House will defer action upon the question of swearing in such person, until there can

be an investigation into the truth of such allegation. It is necessary, however, that such allegation should be made by a responsible party; it is usually made or vouched for at least, by some member or member elect of the House. It is to be presented at the earliest possible moment after the meeting of the House for organization, and generally at the time that the person objected to, presents himself to be sworn in. The person objected to upon grounds such as these, is not sworn in with the other members, but stands aside for the time being, and the House through its committee with all possible speed proceeds to inquire into the facts.

§ 223. The certificate of election does not ordinarily, if ever, cover the ground of the due qualification of the person holding it. It may be said that by declaring the person "duly elected," the certificate, by implication, avers that he was qualified to be elected, and to hold the office. But it is well known that canvassing officers do not in fact inquire as to the qualifications of persons voted for; they certify what appears upon the face of the returns, and nothing more. The certificate, therefore, must be regarded as evidence of the election of the person named therein, so far conclusive, that it cannot be attacked except in the ordinary mode provided for contesting, but it is not evidence of the qualifications of the person named. The presumption always is, that a person chosen to an office is qualified to fill it, and it is never incumbent upon him to prove his eligibility. The certificate of election does not add to this presumption, but simply leaves it where the law places it, and he who denies the eligibility

of a person who is certified to be elected, must take the burthen of proving that he is not eligible. During the rebellion the House of Representatives repeatedly decided that a disloyal person should not be sworn in as a member of that body, and it was also decided that a charge of disloyalty against a member elect should be investigated and decided, previous to his being allowed to take his seat. the case of the Kentucky election, (2 Bartlett, 329,) this was the ruling of the House. The doctrine was thus stated in the committee's report:

In

"The committee are of opinion that no person who has been engaged in armed hostility to the government of the United States, or who has given aid and comfort to its enemies during the late rebellion, ought to be permitted to be sworn as a member of this House, and that any specific and wellgrounded charge of personal disloyalty made against a person claiming a seat as a member of this House ought to be investigated and reported upon before such person is permitted to take the seat; but all charges touching the disloyalty of a constituency in a State in which loyal civil government was not overthrown during the late rebellion, or the illegality of an election, are matters which pertain to a contest in the ordinary way, and should not prevent a person holding a regular certificate from taking his

seat."

§ 224. The case of Hunt vs. Chilcott, (2 Bartlett 164.) is one of the very few cases in which a certificate of election signed by the proper authority, has been held insufficient to entitle the holder to be sworn in a member of the House of Representa

pending a contest.

tives of the United States, and to occupy the seat, The reason for this action, however, was that the party holding the certificate had voluntarily offerred evidence which impeached it. The committee said in their report:

"But Mr. Hunt did not rest his case upon that paper alone. He introduced Governor Cummings in its support. The governor informed the committee, that on the said 5th of September a canvass of the votes cast for delegate was had in his presence, by the board of canvassers; that two of said board found that a majority of all the votes had been cast for George M. Chilcott, and that one of said board dissented from this conclusion, and that he, the governor, considering himself one of the board, agreed with the dissenting member, making a tie, whereupon he determined the election himself, and made a certificate in opposition to the conclusion of two members of the board. In addition to the governor's statement, among the papers submitted by the House, is a report of the board of canvassers, signed by Frank Hall, Secretary of the Territory, and Richard E. Whitsitt, Auditor of the Territory, and addressed to the governor, in which they state that at the canvass held in his presence, according to law, they find that Mr. Chilcott had 3,529 votes, and A. C. Hunt had 3,421 votes, by which it would appear that Mr. Chilcott was elected delegate by 108 majority. The certificate of the Governor thus appears to have been issued in violation of the laws of the Territory, in order to reverse the facts of the Under this state of facts the committee do not feel authorized to report that Mr. Hunt is entitled, prima facie, to a seat as delegate."

canvass.