gating charges of fraud and deciding upon them.1 In a later case, (Wallace v. Simpson, 2 Bartlett, 552,) in which Mr. Simpson held the governor's certificate, and Mr. Wallace held a certificate of the canvassers setting forth that he had received a majority of the legal votes, accompanied by a statement alleging that frauds and irregularities had occurred in the election, and that although they had given Simpson a certificate they believed Wallace elected, the house acted upon the doctrine that the second statement, showing on its face that the canvassers had gone beyond their province, was unauthorized, and that the governor's certificate established a prima facie case, and entitled the holder to the seat. This doctrine has since been established by frequent decisions.

An exception to the rule which makes the certificate signed by the proper officer prima facie evidence of title, occurs when the paper contains some recital of facts impairing its value for that purpose. If facts are recited, for example, contradicting the purport of the certificate by showing that certain votes were not canvassed which might have changed the result, or by showing affirmatively that the holder of the certificate was not in fact elected, the prima facie case is destroyed, and it will be competent to go behind the certificate to inquire into the facts. If it appear upon inquiry that the canvassing of the omitted votes would not have affected the result,

1. State ex rel. Bland v. Rodman, 43 Minn., 256; State v. Steers, 44 Mo., 224-228.

the prima facie case is re-established. (Kountz v. Koffroth, 2 Bartlett, 25.)

The exception just mentioned having relation to cases in which the certificate contains some unusual feature, and is not, therefore, in ordinary or regular form, the rule still holds good that a certificate of election, regular in form and signed by the proper authority, generally confers upon the person holding it the prima facie right to the office,1 and is evidence of his title which can ordinarily only be overcome by a contest in the manner directed by law.2

The syllabus of the decision in Kerr v. Trego et al., 47 Pa. State, 292, reads: "In all bodies that are under law, where there has been an authorized election for the office in controversy, the certificate of election which is sanctioned by law or usage, is the prima facie written title to the office, and can only be set aside in a contest in the forms prescribed by law." This was a proceeding founded on a bill in which the complainants alleged that, having been duly elected to the common council of Philadel phia, they had attended the meeting held by the members continuing from the preceding year, and presided over by the president whose term had not yet expired, and had duly organized, forming a quorum. But that the defendants and other members had refused to act with

1. People v. Miller, 16 Mich., 56; Crowell v. Lambert, 10 Minn., 369 ; State v. Sherwood, 15 Minn., 221; State v. Churchill, Ibid, 445.

2. Commonwealth v. Baxter, 35 Penn. St. R., 263; The State v. The Governor, 1 Dutch., N. J., 331; Kerr v. Trego, Supra.

them, had disturbed their proceedings, and threatened and intended to exercise, as a separate body, the powers of the common council. It appeared that the complainants had all presented their certificates at the time of the organization, but that their seats were contested. The Supreme Court (Lowrie, J., delivering the opinion) held that the courts had the authority to redress such wrongs because "all bodies, except the supreme legislature, are under law" and "subject to the judicial power established by the constitution;" that the body represented by the complainants having maintained the forms of organization according to the laws and usages of the body, was legitimately organized, the certificates of the new members being evidence of their right to admission, subject to contest.

Hadley v. City of Albany and Hunter v. Chandler, although not decisions in election cases, may be noticed here as illustrating the effect given by the courts to clection certificates in collateral proceedings.

Hadley v. City of Albany, decided by the New York Court of Appeals, is authority for the doctrine that while, in a proceeding between the people and a person claiming an office, to impeach the election, the certificate is only prima facie evidence of the right claimed under it, and may be impeached, yet in a controversy arising collaterally or between the party holding the certificate and a stranger, it is conclusive of the election of the officer, and is not open for determination by a jury. In the case referred to the plaintiff brought suit to recover his

salary as policeman. The defence was that he had been removed by the mayor. The plaintiff offered to prove that his removal was not legal, because the person claiming to act as mayor was not elected, and to sustain this offered in evidence the returns to impeach the certificate of election. The court ruled the evidence out, and was sustained on appeal.1

The decision in Hunter v. Chandler, 45 Mo., 453, was that when one, who is in office under a commission, resigns pending a quo warranto proceeding on the part of the state against him and the proceedings are abandoned before the right to the office is determined, an action cannot be maintained against him for the emoluments he may have received, by the person claiming to have been entitled to the office, unless he has first established his right in a proceeding for that purpose.

The Hearing.

The inquiry in all contested elections, whether in legislative bodies, in courts or before a jury, or upon quo warranto, opens the whole question,2 and goes to the merits of the case, the object being to ascertain and give

1. Hadley v. City of Albany, 33 N. Y., 603. Denio, J.: "If the question had arisen upon an action in the nature of a quo warranto information, the evidence would have been competent; but it would be intolerable to allow a party affected by the acts of a person claiming to be an officer, to go behind the official determination to prove that such official determination arose out of a mistake or fraud." Hunter v. Chandler, 45 Mo., 453; Peyton v. Brent, 3 A. Cr. C. C., 424.

2. McCrary on Elections, & 287; The People v. Vail, 20 Wend., 12.

effect to the will of the majority of legal voters who voted in the election.1 Accordingly, the returns may be impeached, the ballots recounted, their legality, when questioned, inquired into and their meaning, when doubtful, ascertained, and all allegations of irregularity, fraud and corruption examined into. In Missouri it is held that, if a contestant seeks to go behind and set aside the returns, he must set forth in his pleadings wherein they are false. 3

In Howard v. Shields, 16 Ohio St. Rep., 184, where the fact was that the election officers had omitted to sign the poll books and tally lists, at the proper place, and had omitted, also, to state the aggregate of the votes cast, it was decided that verbal evidence was admissible to explain and correct the omissions.

The rules for counting disputed ballots in which the initials only of a candidate are used, or a wrong initial, or one initial omitted, or in which the voter has substituted a written for a printed name, have been already stated, and need not be repeated now, further than to say that, in such cases, the decisions are, that the intention of the voter should prevail when it can be ascertained.

4

People v. Pease, supra., is authority upon the point that if a voter refuses to disclose for whom he voted,

1. People v. Vail, supra.; Commonwealth v. Commissioners, 5 Rawle, 77. 2. People v. Pease, 27 N. Y., 45; Cushing's Am. Par. Law, ? 199, 210. 3. State ex rel. Townsley, 56 Mo., 107.

4. Ante; Chapter on Conduct of Elections.