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tion to be held by the new third district to fill it. At this election Mr. Perkins was chosen. There was a majority report from the committee of Elections in his favor, and after debate in the house he was admitted to the seat by the very close vote of 98 to 90. There are grave reasons for questioning the soundness of this decision. Let us suppose, for example, that after an election by a district, it is divided into two equal parts, and one-half placed in one new district and the other half in another. If under these circumstances a vacancy occurs, by which of the new districts shall it be filled? Or we may suppose that the territory composing a district may be distributed among three, four, or half-a-dozen new ones. In such cases there is no sound principle upon which to determine which, if any, of the new districts shall fill a vacancy which may occur from the old. The true rule, therefore, must be that a district once created, and having elected a representative in Congress, should be allowed to continue intact for the purpose of filling any vacancy which may occur, until the end of the Congress in which it is represented. And if a State legislature shall abolish such district after it has elected its representative, and shall make no provision for filling a vacancy, it may, in the event of a vacancy, be obliged to go unrepresented for the time being.

§ 180. The case of Jared Perkins, supra, was expressly overruled in the more recent case of Hunt vs. Menard, (2 Bartlett, 477.) In this latter case the committee said:

"The act of the legislature of Louisiana of August 22, 1868, making a new division of the State into its

five congressional districts, by its terms, purports to repeal all laws and parts of laws in conflict with said act, but is silent on the subject of vacancies that might occur in the districts as then existing.

"The language of the minority report in the case of Perkins on the New Hampshire statute, is appropriate on this point as well as on this case generally, aud we quote from it as follows:

"It does not purport to provide for any method of filling vacancies that might occur in the future, and, beyond all question, it was understood as providing only for the election of members of future Congresses. Such are the terms of the act, and such must also be its spirit. A vacancy in the House of Representatives is the occurrence of an event by which a portion of the people are left unrepresented, and the filling of that vacancy is directed by the Constitution in such explicit language as requires no aid from State enactments to perfect the right. The second section of the first article of the constitution contains the following provision: "When vacancies occur in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies." This is the only provision of law on the subject of vacancies, and it is ample and sufficient. No act of the legislature of New Hampshire purports to interfere in the matter, and the act of July ought not, in our belief, to be understood as requiring the vacancy occasioned by General Wilson's resignation to be filled by any other people than those whose representatives he was. Had such been the purpose of the act, we believe it was incompetent for the law-making power of that State to accom

plish the object while this House hold the right to judge of the election of its members.

"It would not be preservation of the purity of the elective franchise, nor would it be a just guardianship of the republican principle that all shall have a right to be represented, to admit the power of a State legislature to provide that a portion of the people should have two representatives in Congress, while another portion should have none, or not be represented by the man of their choice.

* * *

It is, besides, in disregard of the law of Congress of June, 1842, which declares that no one district shall be entitled to two representatives. If the people who choose a representative are not entitled to fill the vacancy happening by his resignation, it is impossible to tell what portion of the population may most properly exercise this privilege. It seems to be assumed in this case that the new district made by the act of July 11, 1850, and numbered three, has the right to send a representative in place of General Wilson because the number corresponds with that which General Wilson represented. But the order of numbering is an unimportant circumstance, and the first or the fourth district might have been as properly called the third as any other; yet it would be a strange assertion that, on this account, such district would be authorized to have two representatives during the remainder of the thirty-first Congress."

"This reasoning, which your committee consider as sound and pertinent, applied to the case under consideration seems to be conclusive against this election; and it may also be added that whatever power a State legislature may have in the matter, it

is absurd to say that a district when once established and a representative chosen therein, is not to continue for the whole Congress, for which the election has once been operative. No election to fill the vacancy caused by the death of Mr. Mann, appears to have been notified or held in the whole of said district as represented by him."

§ 181. A statute of Kentucky required all votes to be given in the presence of the high sheriff of the county or his deputy. In Letcher vs. Moore, (Cl. & H., 843,) it appeared that at one of the polls both the high sheriff and his deputy were absent for several hours. The sheriff had been called away by sickness in his family, and after he left, and before the arrival of his deputy, a number of votes were cast by legal voters. The only objection to these votes was that they were not given in the presence of the sheriff or his deputy. A majority of the committee reported in favor of rejecting these votes, but the House, upon principles perfectly sound, reversed this decision, and ordered the votes to be counted. The House in the same case overruled the decision of the committee rejecting certain votes otherwise legal, for the reason that they were cast while one of the judges of the election was not present, and while one Moses Grant was acting under an illegal appointment by the sheriff.

§ 182. In Marshall vs. Kews, (2 Swan, 68,) it appeared that two men were candidates for the office of Circuit Court Clerk, that the majority for one of them as shown by the returns, was three votes only; and that at one precinct some twenty voters were deprived of their right to vote, by a failure to open

the polls. Under this state of facts the election was declared void, because it was impossible to know whether the successful candidate would have been elected upon a full expression of choice by all who desired and were entitled to vote.

But in a subsequent case in the same State (1 Sneed, 693,) it was held that an election should not be set aside upon a showing that in "one precinct no election whatever was opened and held," without a further showing that the result of the election was affected thereby.

§ 183. Where a statute requires a question to be decided, or an officer to be chosen, by the votes of "a majority of the voters of a county," this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by the majority of the votes cast, provided always that there is a fair election, and an equal opportunity for all to participate. In such a case the only proper test of the number of persons entitled to vote is the result of the election as determined by the ballot box, and the Courts will not go outside of that to inquire whether there were other persons entitled to vote who did not do so. The "voters of the county" referred to by all such statutes are necessarily the voters who vote at the election, since the result in each case must be determined by a count of the ballots cast, and not by an inquiry as to the number not cast. This doctrine is well settled by the authorities. (People vs. Warfield, 20 Illinois, 163. People vs. Gamer, 47 Ill., 246. People vs. Wiant, 48 Ill., 263. Railroad Co. vs. Davidson Co., 1 Sneed 692. Augell

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