result therefrom, in the light of such facts of public notoriety connected with the election as every one takes notice of, and which may enable them to apply such ballots as are in any respect imperfect to the proper candidates or officers for which they were intended, provided the intent is sufficiently indicated by the ballot in connection with such facts, so that extraneous evidence is not necessary for this purpose. If canvassers refuse or neglect to perform their duty, they may be compelled by mandamus; though as these boards are created for a single purpose only, and are dissolved by an adjournment without day, it would seem that, after such adjournment, mandamus would be inapplicable, inasmuch as there is no longer any board which can act;1 and the board themselves, having once performed and fully completed their duty, have no power afterwards to reconsider their determination and come to a different conclusion.2 Contesting Elections. As the election officers perform for the most part ministerial functions only, their returns, and the certificates of election which are issued upon them, are not conclusive in favor of the officers who would thereby appear to be chosen, but the final decision must rest with the courts.3 This is the general rule, and the exceptions are of those cases where the law under which the canvass is made declares the decision conclusive, or where a special statutory board is established with powers of final decision. And it matters not how 1 Clark v. Buchanan, 2 Minn. 346; People v. Supervisors, 12 Barb. 217. Hadley v. Mayor, &c., 33 N. Y. 603. 3 State v. Justices of Middlesex, Coxe, 244; Hill v. Hill, 4 McCord, 277; Wammack v. Holloway, 2 Ala. 31; State v. Clerk of Passaic; 1 Dutch. 354; Marshall v. Kerns, 2 Swan, 68; Atty.-Genl. v. Barstow, 4 Wis. 567; Atty.-Genl. v. Ely, 4 Wis. 420; People v. Van Cleve, 1 Mich. 362; People v. Higgins, 3 Mich. 233; Dishon v. Smith, 10 Iowa, 211; State v. Johnson, 17 Ark. 407; State v. Fetter, 12 Wis. 566; State v. Avery, 14 Wis. 122; People v. Jones, 20 Cal. 50; Newcum v. Kirtley, 13 B. Monr. 515; People v. Van Slyck, 4 Cow. 297; People v. Vail, 20 Wend. 12; People v. Seaman, 5 Denio, 409; People v. Cook, 14 Barb. 259, and 8 N. Y. 67; People v. Matteson, 17 Ill. 167. See Grier v. Shackleford, Const. Rep. 642; Batman v. Megowan, 1 Met. (Ky.) 533. For the proceedings in the State of New York in the canvass of votes for governor in 1792, where the election of John Jay to that office was defeated by the rejection of votes cast for him for certain irregularities, which, under the more recent judicial decisions, ought to have been overlooked, see Hammond's Political History of New York, ch. 3. The law then in force made the decision of the State canvassers final and conclusive. high and important the office, an election to it is only made by the candidate receiving the requisite plurality of the legal votes cast; and if any one, without having received such plurality, intrudes into an office, whether with or without a certificate of election, the courts have jurisdiction to oust, as well as to punish him for such intrusion.1 Where, however, the question arises collaterally, and not in a direct proceeding to try the title to the office, the correctness of the decision of the canvassers cannot be called in question, but must be conclusively presumed to be correct; 2 and where the election was to a legislative office, the final decision, as well by parliamentary law as by constitutional provisions, rests with the legislative body itself, and the courts cannot interfere, as we have heretofore seen.3 The most important question which remains to be mentioned, relates to the evidence which the courts are at liberty to receive, and the facts which it is proper to spread before the jury for their 1 Barstow, being governor of Wisconsin, was candidate for re-election against Bashford. A majority of the votes was cast for Bashford, but certain spurious returns were transmitted to the State canvassers, which, together with the legal returns, showed a plurality for Barstow, and he was accordingly declared chosen. Proceedings being taken against him by quo warranto in the Supreme Court, Barstow objected to the jurisdiction, on the ground that the three departments of the State government, the legislative, the executive, and the judicial, were equal, co-ordinate, and independent of each other, and that each department must be and is the ultimate judge of the election and qualification of its own member or members, subject only to impeachment and appeal to the people; that the question who is rightfully entitled to the office of governor could in no case become a judicial question; and that as the constitution provides no means for ousting a successful usurper of either of the three departments of the government, that power rests exclusively with the people, to be exercised by them whenever they think the exigency requires it. A strange doctrine in this country of laws! but which, of course, received no countenance from the able court to which it was addressed. In People v. Cicotte, 16 Mich. 283, the opinion is expressed by two of the judges, that one claiming a public office has a constitutional right to a trial by jury, and that this right cannot be taken away from him by any law which shall undertake to make the decision of the canvassing board conclusive. But see Ewing v. Filley, 43 Penn. St. 384; Commonwealth v. Leech, 44 Penn. St. 332. ? Morgan v. Quackenbush, 22 Barb. 72; Hadley v. Mayor, &c., 33 N. Y. 603. And see Hulseman v. Rens, 41 Penn. St. 396, where it was held that the court could not interfere summarily to set aside a certificate of election, where it did not appear that the officers had acted corruptly, notwithstanding it was shown to be based in part upon forged returns. 2 See ante, p. 133. See also Commonwealth v. Meeser, 44 Penn. St. 341. consideration when an issue is made upon an election for trial at law. The questions involved in every case are, first, has there been an election? and second, was the party who has taken possession of the office the successful candidate at such election, by having received a majority of the legal votes cast? These are questions which involve mixed considerations of law and fact, and the proper proceeding in which to try them in the courts is by quo warranto, where no special statutory tribunal is created for the purpose.1 Upon the first question, we shall not add to what we have already said. When the second is to be considered, it is to be constantly borne in mind that the point of inquiry is the will of the electors as manifested by their ballots; and to this should all the evidence be directed, and none that does not bear upon it should be admissible. We have already seen that the certificates or determinations of the various canvassing boards, though conclusive in collateral inquiries, do not preclude an investigation by the courts into the facts which they certify. They are prima facie evidence, however, even in the courts; 2 and this is so, notwithstanding they appear to have been altered; the question of their fairness in such a case being for the jury. But back of this prima facie case 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,5 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 1 People v. Matteson, 17 Ill. 167. * Marshall v. Kerns, 2 Swan, 68; Morgan v. Quackenbush, 22 Barb. 72. State v. Adams, 2 Stew. 231. 4 People v. Van Cleve, 1 Mich. 362; People v. Higgins, 3 Mich. 233; State v. Clerk of Passaic, 1 Dutch. 354; State v. Judge, &c., 13 Ala. 805; People v. Cook, 14 Barb. 259; Same case, 8 N. Y. 67; People v. Cicotte, 16 Mich. 283. 5 People v. Sackett, 14 Mich. 320. But see People v. Higgins, 3 Mich. 233. 6 People v. Cicotte, 16 Mich. 283. the election, and upon actual count of the ballots as then made by the officers whose duty it is to do so. We have already had something to say as to the evidence which can be received where the elector's ballot is less complete and perfect in its expression of intention than it should have been. There can be no doubt under the authorities that, whenever a question may arise as to the proper application of a ballot, any evidence is admissible with a view to explain and apply it which would be admissible under the general rules of evidence for the purpose of explaining and applying other written instruments. But the rule, as it appears to us, ought not to go further. The evidence ought to be confined to proof of the concomitant circumstances, such circumstances as may be proved in support or explanation of a contract, where the parties themselves would not be allowed to give testimony as to their actual intention, where unfortunately the intention was ineffectually expressed.1 And we have seen that no evidence is admissible as to how parties intended to vote who were wrongfully prevented or excluded from so doing. Such a case is one of wrong without remedy, so far as candidates are concerned.2 There is more difficulty, however, when the question arises whether votes which have been cast by incompetent persons, and which have been allowed in the canvass, can afterwards be inquired into and rejected because of the want of qualification. If votes were taken viva voce, so that it could always be determined with absolute certainty how every person had voted, the objections to this species of scrutiny after an election had been held would not be very formidable. But when secret balloting is the policy of the law, and no one is at liberty to inquire how any elector has voted, except as he may voluntarily have waived his privilege, and consequently the avenues to correct information concerning the votes cast are carefully guarded against judicial exploration, it seems exceedingly dangerous to permit any question to be raised upon this subject. For the evidence voluntarily given upon any such question will usually come from those least worthy of credit, who, if they have voted without legal right in order to elect particular candidates, will be equally ready to testify 1 People v. Pease, 27 N. Y. 84, per Denio, Ch. J., commenting upon previous New York cases. See also Attorney-General v. Ely, 4 Wis. 420. 2 See ante, 620. falsely, if their testimony can be made to help the same candidates; especially when, if they give evidence that they voted the opposing ticket, there can usually be no means, as they will well know, of showing the evidence to be untrue. Moreover, to allow such scrutiny is to hold out strong temptation to usurpation of office, without pretence or color of right; since the nature of the case, and the forms and proceedings necessary to a trial are such that, if an issue may be made on the right of every individual voter, it will be easy, in the case of important elections, to prolong a contest for the major part if not the whole of an official term, and to keep perpetually before the courts the same excitements, strifes, and animosities which characterize the hustings, and which ought, for the peace of the community, and the safety and stability of our institutions, to terminate with the close of the polls. Upon this subject there is very little judicial authority, though legislative bodies, deriving their precedents from England, where the system of open voting prevails, have always been accustomed to receive such evidence, and have indeed allowed a latitude of inquiry which makes more to depend upon the conscience of the witnesses, and of legislative committees, in some cases, than upon the action of the voters. The question of the right to inquire into the qualifications of those who had voted at an election, on a proceeding in the nature of a quo warranto, was directly presented in one case to the Supreme Court of New York, and the court was equally divided upon it.1 On error to the Court of Appeals, a decision in favor of the right was rendered with the concurrence of five judges, against three dissentients.2 The same question afterwards came before the Supreme Court of Michigan, and was decided the same way, though it appears from the opinions that the court were equally divided in their views. To these cases we must refer for a full discussion of the reasons influencing the several judges, but future decisions alone can give the question authoritative settlement.4 ⚫ Considerable stress was laid by the majority of the New York Court of Appeals on the legislative practice, which, as it seems to us, is quite too loose in these cases to constitute a safe guide. Some other rulings in that case also seem more latitudinarian than is warranted by sound principle and a due regard to the secret ballot system which we justly esteem so important. Thus Selden, J., |