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and could not be properly considered; but, if considered, it showed upon its face that the board of canvassers had gone outside of their province, in order to investigate charges of fraud and violence in the conduct of the election.

3. That the board having made a certificate of the result, and transmitted the same to the Secretary of State, had no power thereafter to make another and different certificate. The correctness of these propositions is, as we have had occasion to show elsewhere, well established by judicial decisions, as well as by frequent decisions of the House of Representatives itself.

§ 213. In the case of Sheafe vs. Tillman, (2 Bartlett, 907,) a like question was again considered, and the sound rule that a ministerial or executive officer can exercise no judicial functions, was adhered to. In the report in that case the doctrine is laid down as follows: (p. 910.)

"There is no law of the State of Tennessee that gives authority to the Governor to reject the vote of any county or part of a county; his duty is only to compare the returns received by him with those returned to the office of the Secretary of State, and upon such comparison being made, to "deliver to the candidate receiving the highest number of votes in his district the certificate of his election as Representative to Congress." (Code of Tennessee, Sec. 935, page 239.) If illegal votes have been cast, if irregularities have existed in the elections in any of the counties or precincts, if intimidation or violence has been used to deter legal or peaceable citizens from exercising their rights as voters, to this,

House must the party deeming himself aggrieved. look for redress. This great power of determining the question of the right of a person to a seat in Congress, is not vested in the executive of any State, but belongs solely to the House of Representatives. (Constitution United States, Art. 1,

Sec. 5.)

The action of the Governor, so far as he has thrown out the votes of counties or parts of counties, is to be disregarded, and the matters in dispute are to be settled upon the actual returns and the evidence introduced, independent of the doings of the executive."

And this ruling is according to the weight of authority in the House, while it has the support not only of reason and sound policy, but of an almost unbroken line of judicial decisions, extending far back through our history as a nation.

§ 214. There is still another class of cases which have arisen in the lower house of Congress, in which neither party holds credentials, the Governor or other returning officer having refused to declare either party elected. In some of these cases the house has undertaken upon such documentary evidence as it has been able to bring before it, without delay, to decide the prima facie claim, and order one or the other to be sworn in, pending the contest. Kountz vs. Coffroth, 2 Bartlett, 25. Foster vs. Covode, do 519.)

§ 215. Of course the House must, in each case of this character, judge whether there is before it, sufficient prima facie evidence of the election of either one of the claimants, but, as a general rule, it is be

lieved that in the absence of credentials, no one should be admitted to the seat in advance of an investigation upon the merits. And if this general rule is to be departed from in any case, it should be only after a special investigation, by a committee, into the prima facie case, and after a report thereon. And such special inquiry and report can scarcely be possible, unless there is something in the nature of credentials or of written evidence of the election of one or the other claimant. If the returns are duly certified the House may act upon these, or if there is an informal certificate the House may order an inquiry into its effect. But if there is no record or other documentary evidence to show what the result of the election was, it is believed that a full investigation upon the merits should precede the swearing in of either applicant. If the House finds itself obliged to take testimony generally, to decide the prima facie case, it will generally find that it cannot stop short of hearing all the evidence and deciding upon the merits.

216. It is to be observed in this connection that while in determining the prima facie right to a seat, the House of Representatives will not look behind the certificate, if it be signed by the proper officers, and if it contains a statement in unequivocal terms of the result of the election; yet something may appear upon the face of the certificate itself to destroy or impair its value as prima facie evidence.

§ 217. If, for instance, the certificate states that the vote of one county out of five, has not been canvassed, it seems that this would make it necessary even to the determination of the prima facie case to

inquire what the vote was in the county omitted. And if it appear that the vote of the county omitted would have changed the result, the value of such a certificate is destroyed. But if it appear that the vote of the omitted county was not material to the result, then, according to the ruling of the House in Kountz vs. Coffroth, (2 Bartlett 25,) the certificate is good, although based only up on the four counties canvassed. Whenever, therefore, it appears upon the face of a certificate of election, that one or more of the counties composing the district, have been omitted from the canvass, it is the duty of the house, before determining the prima facie case, to inquire into the effect of such omission upon the result of the canvass, and to treat the certificate as prima facie good only in case it appears that the omitted vote would not change the result, or contradict the certificate, if admitted.

§ 218. The principal, and almost the only case in which the lower House of Congress has ever denied to a person holding regular credentials, the right to be sworn and to take his seat, pending the contest, is the celebrated New Jersey Case, (1 Bartlett, 19.) In that case one set of claimants held the regular certificate of election signed by the Governor, and another set held the certificate of the Secretary of State, that they had received a majority of the votes cast in their respective districts. After a long and angry debate the house, (being yet unorganized,) refused to admit either set of claimants to their seats. Subsequently, and after a partial investigation, the holders of the Secretary's certificate were admitted to seats pending the contest, and at the

end of the contest these persons were confirmed in their seats. This precedent has never since been followed in a single instance. It is so clearly wrong and as a precedent, so exceedingly dangerous, that the House has not hesitated to disregard it entirely, on every occasion, when the question has arisen.

§ 219. The effect of the returns of an election is not open for consideration in a proceeding in which the title to the office comes up collaterally. Hence it was held in New York that the law having committed to the common council of a city, the duty of canvassing the returns and determining from them the result of the election for mayor, and the council having performed that duty, and made a determination, the question as to the effect of the returns could not be considered, in an action where the person declared elected was not a party, and in which the question of his right to the office arose collaterally. "If," says Denio, J., "the question had arisen upon an action in the nature of a quo warranto information, the evidence would have been competent," and the evidence referred to was that offered to impeach the canvass made by the common council. "But," he continues, "it would be intolerable to allow a party affected by the acts of a person claiming to be an officer, to go behind the official determination to prove that such official determination arose out of mistake or fraud. (Hadley vs. City of Albany, 33 New York, 603.) And see also Peyton vs. Brent, (3 Cr. CC., 434,) and Hunter vs. Chandler, (45 Mo., 453.) The true rule is, that the certificate of the board of canvassers declaring the result of the election, is, in a controversy arising between the party

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