But there is proof that 120 illegal votes were cast, and no proof as to the person for whom they were cast. The illegal vote is ten per cent. of the returned vote, and hence each candidate loses ten per cent. of the vote certified to him. By this rule John Doe will lose 62% votes, and Richard Roe 571⁄2 votes, and the result as thus reached is as follows: Doe's certified vote, Deduct illegal votes, 625 § 299. This is probably the safest rule that can be adopted in a court of justice, where there is no power to order a new election, and where great injury would result from declaring the office vacant; but it is manifest that it may sometimes work a great hardship, inasmuch as the truth might be, if it could be shown, that all the illegal votes were on one side, while it is scarcely to be presumed that they would ever be divided between the candidates in exact proportion to their whole vote. But the rule which in the absence of proof as to how illegal votes were cast, would deduct them all from the majority candidate, is much more unreasonable and dangerous. Of the two evils the least should be chosen. We see here, however, how important it is that it should, if possible, be made to appear either by direct or circumstantial evidence, for whom each illegal vote was cast. In a legislative body having power to order a new election, and in any other tribunal having the saine power, it will doubtless, generally, be regarded as safer and more conducive to the ends of justice, to order such new election, than to reach a result by the application of the rule above stated. § 300. It would seem, therefore, that in a case where the number of bad votes proven is sufficient to affect the result, and in the absence of any evidence to enable the court to determine for whom they were cast, the court must decide upon one of the three following alternatives, viz: 1. Declare the election void. 2. Divide the illegal votes between the candidates in proportion to the whole vote of each. 3. Deduct the illegal vote from the candidate having the highest vote. And it is clear, also, that where in such a case no great public inconvenience would result from declaring the election void, and seeking a decision by an appeal to the electors, that course should be adopted. And in a case where it is essential that one or the other party to the contest be confirmed in the office to prevent such public inconvenience, then the second alternative above named should be adopted, but the third should in no event be adopted. Let it be understood that we are here referring to a case where it is found to be impossible by the use of due diligence to show for whom the illegal votes were cast. If in any given case it be shown that the proof was within the reach of the party whose duty it was to produce it, and that he neglected to produce it, then he may well be held answerable for his own neglect, and because it was his duty to show for whom the illegal votes were cast, and because he might, by the use of reasonable diligence, have made this showing, it may very properly be said that he should himself suffer the loss occasioned by deducting them from his own vote. This is the principle involved in the case of Duf fey, (4 Brewster, 531,) where the court laid down the following rules: 1. It is the right of petitioners contesting an election, and also the right of the respondent, to examine the election papers on file in the proper office, and if it be apparent from them that persons have voted in any district whose names were not on the "registry list," without being vouched according to law, then prima facie all such votes are illegal. 2. When a contest has been inaugurated and complaint made and notice given that such votes have been received, the burden of proof falls upon the candidate advantaged by the general count in such district to show either that the persons so voting possessed severally every qualification, or if this be not so that they voted for his opponent; he must lift the curse which the law imposes upon such ballots; otherwise it will be presumed that they were polled and counted for him; and thereupon the poll will be purged by striking the whole number of such votes from his count. To the first of these propositions no exception can be taken, and we apprehend that the same ruling will be made in all our States which have registry laws requiring persons not registered to file with the judges of the election affidavits of themselves or others, in proof of their right to vote. The second proposition can be maintained if at all, only upon the ground that it is in the case stated practicable to show for whom the illegal votes were cast. It is said in the course of the opinion: "The number of these illegal votes was easy of ascertainment; the names of the persons polling them had but to be read to be known." Upon the theory that the illegal voter can be called as a witness and compelled to disclose for whom he voted, (which is beyond doubt the true theory,) it would be easy in such a case as the one stated, to call the illegal voters and require them to testify to the fact. It still remains, however, a question whether they shall be called at the instance of the contestant upon the theory that the burden of proof is upon him to make out his case, or at the instance of the respondent upon the theory that because he is advantaged by the general result he must show that all illegal votes were cast for his opponent, or suffer them to be deducted from his own vote. The court adopted the latter theory, but we think the safer rule would be for the contestant to show not only that a certain number of illegal votes were polled, but also to show if he can, that they were cast for his opponent. It is not intended by this to assert that the rule above quoted from Duffey's case is positively erroneous, but only to intimate a doubt, and to express the opinion that the ordinary principle which requires the party holding the affirmative to prove the facts, and all the facts, necessary to make out his case, is the better rule, and that it will in all cases be safer to follow it. Of course, if by the use of due diligence it be im possible to find the illegal voters, or if upon being found it shall be impossible to ascertain from their testimony how they voted, the contestant should not suffer. This would present the question, what is to be done with illegal votes when it is found to be impossible by due diligence to show for whom they were cast, a question which is discussed in the preceding sections. § 301. A person who votes without being qualified is a mere intruder, and not entitled to the privileges which belong to legal voters. But such a person will not be compelled to testify as to the person for whom he voted, until it is clearly shown that he voted illegally. So long as the question as to the legality of his vote is in doubt, he cannot be compelled to make the disclosure. Ward Election, 4 Penn., L. J., 349. cott, 16 Mich., 283. State vs. Hilmantel, 23 Wis., 422.) An illegal voter may, however, decline to answer for whom he voted, on the ground that his answer might criminate himself, but in such case the contents of the ballot may be shown by other testimony. (State vs. Ohio, 23 Wis., 309.) (Case of Locust People vs. Ci And a legal voter may waive his privilege and voluntarily testify as to the persons for whom he has voted. (Reed vs. Kneass, 2 Parsons, Philadelphia, 584. Brightley's Election Cases, 366.) § 302. While a mere irregularity which does not effect the result, will not vitiate the return, yet where the provisions of the election law have been entirely disregarded by the officers, and their conduct has been such as to render their returns utterly unworthy of credit, the entire poll must be rejected. In |