to all certificates which are by law required to be made by officers of election, or of registration, or by returning officers. They can only certify to such facts as the law requires them to certify. The certificate of such an officer is not, however, vitiated by the fact that it contains the certification of facts outside of those which the officer has a right to certify. If it in fact certifies the proper facts it is good, and the remainder of the certificate is to be rejected as surplusage.

§ 105. The doctrine of Gooding vs. Wison, (supra,) was strongly asserted in State vs. Dunniworth, [21 Ohio, 216,] where it was held that the officers of an election board after its regular dissolution are functus officio, and their subsequent acts in that character unauthorized; and that where a municipal election board had regularly dissolved, and the box in which the canvassed ballots were placed had remained five days in an exposed place of easy access, a subsequent tally sheet made on the fifth day on re-count of ballots then found in the box, by four officers of the municipality, some of whom were members of the election board, will not be received to impeach the original canvass and tally sheet.

§ 106. The inspectors of an election having received the vote of a person, and deposited the same in the box, cannot afterwards enter into any inquiry as to the right of such person to vote. There are two sufficient reasons for this rule. In the first place, the voter is a necessary party to any such investigation, and in the second place, the inspectors cannot be presumed to know how any person voted, and, therefore, cannot know which ballot to exclude. The

rule is, therefore, that the moment the ballot is deposited, all control over it, and all power to inquire as to its legality, by the officers of the election, is ended. (Hartt vs. Harney, 32 Barbour, 55.)

§ 107. A statute of New Hampshire required the town clerk to record the vote for representative in Congress, as counted and announced in his presence by the selectmen, and to send a copy thereof to the secretary of state. The statute further provided as follows: "If the clerk of any town shall make an incorrect or insufficient record or return of the votes given therein, at any meeting for any officer, the tribunal by whom said votes are opened and corrected may require said clerk, at his own expense, to come in and amend said record or return, according to the facts of the case."

It was held by the Supreme Court of that State that this statute only authorizes town clerks when required, to make their record to correspond with the declaration of the vote, as publicly made by the moderator, and does not authorize them to make by amendment a record which they could not have made in the first instance. (Opinion of the Justices, 53, N. H. 640.)

§ 108. When the law designates a place for holding an election for a given precinct, and provides a set of officers to conduct the same, and makes no provision for more than one voting place or ballot box within such precinct, it is not lawful for the officers of election to provide two or more ballot boxes at different places within such precincts. Especially is this true of an election for Representatives in Congress, at which, under the act of Congress of

February 28, 1871, a supervisor of election appointed under the authority of the United States, is entitled to be present. If the places of voting within a precinct may be multiplied, the local authorities may render it impossible for the supervisor to be present at the place for holding the election as required by law. Besides it is plain that for many other reasons the power to multiply voting places would be an exceedingly dangerous power and one which might be used for purposes of corruption and fraud. (Sloan vs. Rawles, 43d Congress.)

CHAPTER III.

OF THE TIME, PLACE AND MANNER OF HOLDING
ELECTIONS, AND OF NOTICE.

§ 109. It is, of course, essential to the validity of an election, that it be held at the time, and in the place, provided by law. An interesting and important question arose, however, in many of the States of the Union, during the progress of the great rebellion, as to the validity of certain statutes, authorizing persons in the military service of the United States to vote while absent from their States, engaged in such service.

The constitutionality of these statutes generally turned upon the question whether it was competent for a State legislature to authorize a citizen to vote elsewhere than at the place of his residence. In the

constitutions of most of the States there were provisions requiring that each elector should vote at the place of his residence, and not elsewhere. The Constitution of Michigan provided that the voter should have resided "in the township or ward in which he offers to vote, ten days next preceding such election." The legislature of that State enacted that persons in the military service possessing the qualifications provided by the Constitution, should be allowed to vote wherever they might be, whether within the limits of the State or not. In the case of Baldwin vs. Trowbridge, 2 Bartlett, 46, the House of Representatives held this statute to be constitutional, in so far as it related to the election of Representatives in Congress. The decision was placed by the majority of the committee of elections, in their report, upon the ground that where there is a conflict between the State Constitution and a legislative act, in regard to fixing the place of an election for such Representatives, the power of the legislature is paramount. This was held as the necessary effect of Article one, Section four, of the Constitution of the United States, which provides as follows:

"The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators."

§ 110. It was held that, by this provision, the power is conferred upon the legislature of the State, and that in fixing the place of the election for representatives in Congress, it acted under, and derived its

This

authority, from the Constitution of the United States, and not from the Constitution of Michigan. view of the subject was ably presented in the report made to the House by Mr. Scofield, of Pennsylvania. The reasoning of the report may be thus stated: The place of the election, for representative in Congress, is to be fixed by the legislature of the State. So declares the National Constitution. But in Michigan, the Convention which framed the State Constitution, undertook to determine the place where all such elections should be held. This was an attempt to take from the legislature the power plainly conferred by the Federal Constitution. In so far, therefore, as the Constitutional convention undertook to fix the "place" for "holding elections for representatives" it went beyond its authority, because it was not "the legislature of the State."

§ 111. A very similar question arose in Shiel vs. Thayer, (2 Bartlett, 349.) In that case, the constitution of Oregon had fixed the time of holding the election for representative in Congress, and the legislature had not acted upon the subject. The case is, therefore, to be distinguished from Baldwin vs. Trowbridge, in this, that the former was not like the latter, a case of conflict between the State Constitution and any act of the State legislature. It is true, that the committee, in their report, express the opinion that the Constitution of the State had fixed "beyond the control of the legislature" the time for holding the election for representative in Congress; but this point was not necessarily involved in the case, and it is evident, from the debate in the House, that there was a wide difference of opinion upon it.