§ 382. In a case of quo warranto instituted for the purpose of trying the right of an individual to hold a public office, the people are understood to be interested as a body in the investigation, and therefore the Attorney General or other officer holding a similar relation to the public, must represent the people, and is the only person whose stipulation, can be acted upon so as to affect the people. It was accordingly held in Michigan, that the court should. not consider a statement of facts agreed to between the relator and the respondent, and not signed by the Attorney General. (People vs. Pratt, 15 Mich., 184. Crawford vs. Molitor, 23 Mich., 342.) And, as we have already seen, substantially the same rule prevails, in all cases of contested election, whether in the form of a quo warranto, or by statutory proceedings.

§ 383. In Newcum vs. Kirtley, (13 B. Monroe, 515,) it was held that the votes of two electors who according to the testimony of several witnesses, would have voted for contestant if the polls had not been closed too soon, could not be counted as if cast. It did not appear that the electors in question had presented themselves at the proper voting place, within the hours during which the law required the polls to be kept open, for the purpose of voting for contestant, and that after doing all that was in their power they were prevented by the fault of the election officers, from so voting. If these facts had appeared the question would have been very different from the one decided. The court seems to have placed great stress upon the fact that "their votes were not offered to, nor taken by the officer en

trusted by law with the office of receiving and recording them," and very properly, as that was a controling fact. The true rule upon this subject has been stated in another connection and is this: In order that a ballot not actually cast, shall be counted as if cast, it must appear that the voter actually offered to cast it, and was prevented from so doing without fault on his part, or if he does not actually present his ballot to the officers of the election, that he endeavored to approach the polls for that purpose, and used due diligence in endeavoring to reach the polls, but was prevented from so doing. Doubtless a rule much more lax than this, has occasionally been adopted in legislative bodies, but every departure from this rule as here stated is, and must be, both erroneous and dangerous.

§ 384. Where a statute provided that the grounds of contest "must be verified by the affidavit of the contesting party, that the matters and things therein contained are true." It is sufficient if the ordinary form of verification is followed, viz: that the statement is true except as to matters therein set forth on information and belief, and as to those matters affiant believes it to be true. This has been held to be a substantial compliance with such a statute, and it has been well said that to require the contestant to make oath to the absolute verity of every averment of the statement or petition, would prevent the contest of an election in almost any conceivable case and would work a practical abrogation of a beneficial law. In the nature of the case, many of the facts to be averred must necessarily be derived from others and therefore must be stated upon informa

tion and belief only. Kirk vs. Rhoades, 46 Cal., 398.

§ 385. The mode of proceeding when a contested election case is before a legislative body, is generally prescribed by statute, or by the rules of such body. In the absence of any such statutory regulation, and in the absence of any standing rule upon the subject, the proceedings will be such as the body itself may prescribe for each particular case, and they must include due and reasonable notice to the incumbent of the office, and a fair opportunity for adducing proofs and being heard on both sides. And no notice can be considered "due and reasonable," which does not inform the incumbent with sufficient certainty, to prevent any surprise upon the trial, of the grounds of the contest. The incumbent will also be required to answer, so that the issue may be understood, both by the parties themselves and by the body which is to try the case.

§ 386. In Reed vs. Kneass, (2 Parsons, 584, Brightley's Election Cases, 366,) it was insisted by counsel that a voter should not be permitted to testify as to the person for whom he has voted at an election. It was contended that the constitutional provision that "all elections shall be by ballot," was not simply intended as a security to the elector for the free and independent exercise of the right of suffrage, but that from considerations of public policy it should be held to prevent the voter, under any circumstances, from disclosing before a judicial or other tribunal how he voted. But this point was overruled, and it was held that while the voter has the privilege of preserving the secrecy of his ballot

by refusing to testify to its contents, he is at liberty to waive that privilege. If it were otherwise it might often be impossible to bring to light the darkest frauds. It would be a strange perversion of the rule which preserves the secrecy of the ballot, for the purpose of encouraging free and independent voting, to make it serve to shield the fraud and corruption of those who would, by tampering with or changing ballots, after they are cast, altogether deprive the majority of the electors of their choice. In the case just cited two hundred and thirty witnesses were examined and testified that they had each voted at a given precinct for W. B. Read, for District Attorney, whereas, according to the official returns, he had received but one hundred and twenty votes therein. This mode of attacking and impeaching a return has been frequently recognized as proper, and this kind of evidence as competent. (Reid vs. Julian, 2 Bartlett, 822. Loyal vs. Newton, 1 do, 522.)

§ 387. It is undoubtedly the policy of the law not to throw too many obstacles in the way of investigating the correctness and bona fides of election returns. On this point the Court in Reed vs. Kneass (supra,) very justly observe.

"The true policy, to maintain and perpetuate the vote by ballot, is found in jealously guarding its purity, in placing no fine drawn metaphysical obstructtions in the way of testing election returns charged as false and fraudulent, and in assuring to the people by a jealous, vigilant and determined investigation of election frauds, that there is a saving spirit in the public tribunals charged with such investigations

ready to do them justice if their suffrages have been tampered with by fraud, or misapprehended through error."

§ 388. Concerning the admissibility of the ballots themselves, in evidence, in a case of contested election, Judge Cooley, in his Constitutional Limitations, (p. 625,) has this to say:

"But back of this prima facie case, (made by the certificate of election,) the Courts may go, and the determinations of the State board may be corrected by those of the district boards, and the latter by the ballots themselves, when the ballots are still in existence, and have been kept as required by law. If, however, the ballots have not been kept as required by law, and surrounded by such securities as the law has prescribed, with a view to their safe preservation as the best evidence of the election, it would seem that they should not be received in evidence at all, or, if received, that it should be left to the jury to determine, upon all the circumstances of the case, whether they constitute more reliable evidence than the inspectors' certificate, which is usually prepared immediately on the close of the election, and upon actual count of the ballots as then made by the officers whose duty it is to do so."

§ 389. It matters not how high and important an office may be, an election to it must be by the majority or plurality of the legal votes cast. And if any one without having received such majority or plurality intrudes himself into an office, whether with or without a certificate of election, the Courts have jurisdiction to oust him, unless some other tribunal has been clothed with this power to the exclusion of