great a tendency to coerce or deceive electors into becoming the mere instruments of others.

"But there are further provisions bearing more directly on the propriety and necessity of allowing no inquisition into individual votes.

County officers are among those included under sec. 31 of the Compiled Laws, which declares that the persons having the greatest number of votes shall be deemed to have been duly elected.' The law does not confine this to votes cast by authorized voters, and can only be applied to votes cast and recorded in the manner provided by law. And although this section, standing alone, might be open to construction, yet, when the whole law is taken together, there are provisions not to be reconciled with any rule allowing single voters and their votes to be made the subject of inquiry. It will not be denied, that an inquiry into the legality of a particular voter's qualifications, after his vote has been cast, is of a strictly judicial nature; and it cannot be proper or legal to allow such an inquiry in one case, and not in another. But it will be found not only that the rejection of votes from the count is required to be in such a way as to preclude any consideration of the person giving or putting them in, but that there are cases where even a legal inquiry into the ballots themselves is prevented.

"In the first place, when two or more ballots are so folded together as to present the appearance of one, and if counted will make the ballots exceed the names on the poll-list, they are to be destroyed. And whenever, for any other reason, the number of ballots found in the box exceeds the number of names on the corrected poll-lists, the inspectors are required to draw out and destroy unopened a number equal to the excess. This is, of course, upon the assumption that the excess has probably been caused by

fraud, and assumes that no man's vote ought to be counted, unless the testimony of the poll-lists shows that he actually handed in his ballot. It is, therefore, altogether likely, upon any theory of probabilities, that, in drawing out these extra ballots, they will really be ballots lawfully put in, and this probability is in the ratio furnished by a comparison of numbers between lawful and unlawful votes. In other words, it is more than likely to punish the innocent, instead of the guilty. The true method of arriving at the truth would be to inquire what vote each voter on the list actually cast, and destroy the remainder. The absurdity of this process upon such a large scale is such as to need no pointing out. But unless something very like it is done in such a case as the present, the result obtained by any partial inquiry will be no better than guesswork. Where votes are thrown out, no one can tell whether the illegal voter whose vote is sought to be assailed has not already had his vote cancelled. The adoption of the principle of allotment is the most sensible and practicable measure which could be devised, and I cannot conceive how it can be improved upon by any subsequent search.

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But when the inspectors have made their returns to the county canvassers, and by those returns a tie vote appears between two or more candidates, who are highest on the list, their right to the office is to be determined by lot, and the person drawing the successful slip is to be deemed legally elected to the office in question.' Compiled Laws, §§ 76, 132, 133.

"In case the State canvassers (who can only count the votes certified to them) find a tie vote, the legislature has power to choose between the candidates. Constitution, art. 8, § 5. In these cases, there can be no further scrutiny; and in the case of State officers, if such a scrutiny were had,

no end could be reached within any reasonable time, and there would be a practical impossibility in attempting to conduct it in any time within the official term, or to approach accuracy in a count of some thousand or more ballot-boxes before a jury. Yet State officers are not less important to the private elector, and, of course, are not to the community at large, than local. And the nearer a vote approaches a tie, the more likely it is that a rigid scrutiny might change its character. There is no more reason for preventing investigation behind the ballots in the one case than in the other.

"The statute also takes very efficient measures to prevent any needless litigation by shutting out any preliminary resort to the means of information. If the officers do their duty, no one else can ever know whether their count is correct or not. until a suit is brought and issue joined upon it. The ballots are required to be sealed up, and not opened except for the inspection of the proper authorities, in case of a contest. The only ballots open to public inspection are those which are rejected upon the canvass for defects apparent on their face. These ballots are not sealed up with the rest, but are filed; while, therefore, it can be determined by inspection whether votes which have been thrown out should have been counted, the law does not seem to favor any unnecessary disturbance of the official returns, and any one who assumes to dispute an election is compelled to begin his suit before he can have access to the means of proof.

This is not the usual course of litigation, and the rule has a strong bearing upon the policy to be deduced from the law.

"Under our statute, there is no general provision which makes the canvass for local officers conclusive in all cases, and therefore the rule is recognized that the election usually depends upon the ballots, and not upon the returns. These being written and certain, the result of a recount involves no element of difficulty or ambiguity, beyond the risk of mistakes in counting or footing up numbers, which may, in some respects, be more likely in examining the ballots of a whole county than in telling off those of a town or ward, but which involves no great time or serious disadvantage. But the introduction of parol evidence concerning single voters in a considerable district, can rarely reach all cases of illegality effectually, and must so multiply the issues as to seriously complicate the inquiry. And when we consider that, for many years, legislation has been modified for the very purpose of suppressing illegal voting, and when we know that hundreds of elections must have been turned by the ballots of unqualified voters, the absence of any body of decisions upon the subject is very strong proof that inquiry into private ballots is felt to be a violation of the constitutional safeguard on which we pride ourselves as distinguishing our elections from those which we are wont to regard as conducted on unsafe principles."