CHAPTER XII. ELECTION CONTESTS. Most of the questions that arise in election contests, on the merits-questions which go to the qualifications of the voter, the legality of the ballot and whether it was counted for the right person, and the regularity of the election are considered in the preceding chapters. There are certain established rules touching the rights of the claimants pending the inquiry into the merits which may be now stated. The constitution of every state makes each house of the legislature the judge of the qualifications and returns of its own members, and the constitution of the United States contains the same provision relative to the Senate and House of Representatives. In considering and determining between rival claimants to seats, therefore, these bodies are entirely independent of the courts, this being essential to the maintenance of their equality as co-ordinate branches of the government. All other bodies and officials, however, are, as we shall see,1 within the jurisdiction of the courts. 1. Kerr v. Trego, 47 Pa State, 292, post. The Mode of Procedure. The common law method of trying the title to office was by the writ of quo warranto, and this practice still obtains in addition to statutory provision for other methods. Originally the proceeding, instituted against the defendant as an usurper in office, the judgment of ouster against him carried with it a penalty in the nature of a fine, as it was considered a public offence to usurp an office. But its object is now practically confined to trying the right to the disputed office. The proceedings under quo warranto are in many states regulated by statutes, which do not change the common law very materially, but it is safe to consult them, as they are, in some respects, remedial and should be strictly followed. Procedures other than that of quo warranto have been substituted in all the states for contesting the election of state and county officials. The acts providing for these contests create the tribunals before which they shall be had, and prescribe in detail the course of proceedings. They are more summary than the old method, and an improvement upon it, as, under them, the merits of the case may be more quickly reached and the abuse of long continued usurpation in office prevented. Congress has also provided by law the method of contesting elections in either house. (See appendix.) The Certificate of the Returning Officers. The certificate of the election returning officers is pri ma facie evidence of the right of the person holding it,1 and the primary evidence in a proceeding contesting his election. If the returning officer refuse to issue it, secondary evidence may be offered by the party claiming the election. The election officers can only be required to certify to the facts required by the statute, and their certificate is evidence solely of such facts,2 but their refusal or neglect to perform the duty imposed upon them by the statute, cannot operate to defeat the popular will or deprive anyone of his rights.3 In the organization of legislative bodies it is the general rule, where a seat is contested, to permit the person holding the certificate, signed by the officer or officers authorized by law to issue credentials, to qualify and take his seat in the first place, subject to a decision upon the merits.4 The New Jersey case was one in which the lower house of congress refused to allow those holding the governor's credentials to be sworn. The case was a peculiar and extraordinary one. One set of claimants held certificates of election signed by the governor; the others presented certificates of the secretary of state, showing that they had received majorities of the votes cast in their respective districts. A protracted discussion, while the house was yet in an unorganized state, resulted 1. Kerr v. Trego, 47 Pa. State R., 292. 2. Switzler v. Anderson, 2 Bartlett, 374. 3. Richards' Case, Cl. & H., 95; Clements' Case, 1 Bartlett, 266. 4. McCrary on Elections, 204, 205. in a refusal to admit either set of claimants pending the investigation, the majority being satisfied that the governor's certificates were in fraud of the electors." The form of the certificate or credential is immaterial. It is sufficient if signed by the officer authorized by law to issue it, and if several are required to join in issuing it, it is generally sufficient if a majority sign it.1 And when the law does not expressly designate the officer who shall certify to the election of a member of congress, a certificate signed by the governor of the state, with the seal of office attached, will be accepted as lawful, and as prima facie evidence of the holder's title, under the statute of 1867.2 Cases have occurred in which it was necessary to decide between claimants holding certificates from the same officer. This was the case in Morton v. Daly. The governor first issued his certificate to Morton, and subsequently, upon the alleged discovery of fraud, gave Daly a certificate declaring him to have been elected. The House allowed the latter to be sworn and take his seat pending investigation. This decision is questioned, inasmuch as it recognized in the governor the right to exercise judicial functions and enquire into fraud, contrary to several authorities holding that in the absence of law vesting the executive with judicial powers, he cannot exercise such powers, for the purpose of investi1. Ibid., % 205. 2. Case of Clark, 42 Congress. |