such a case the returns prove nothing. But it does not follow that legal votes cast at such poll must be lost. They may be proven by secondary evidence, (the return being, until impeached, the primary evidence,) and when thus proven may be counted. (Littlefield vs. Green, 1 Chicago Legal News, 230. Brightley's Election Cases, 493. McKenzie vs. Braxton, 42d Congress. Giddings vs. Clark, 42d Congress.)

§ 303. The question, under what circumstances the entire poll of an election division may be rejected, has been much discussed, and conflicting views have been expressed by the courts. The power to reject an entire poll, is certainly a dangerous power, and though it belongs to whatever tribunal has jurisdiction to pass upon the merits of a contested election case, it should be exercised only in an extreme case, that is to say, a case where it is impossible to ascertain with reasonable certainty, the true vote. It must appear that the conduct of the election officers has been such as to destroy the integrity of their returns, and to avoid the prima facie character which they ought to bear as evidence, before they can be set aside, and other proof demanded of the true state of the vote. (Mann vs. Cassiday, 1 Brewst., 60.) And it is truthfully said in Thompson vs. Ewing, (Ibid, 107,) "that the whole conduct of election officers may, though actual fraud be not apparent, amount to such gross and culpable negligence, such a disregard of their official duties, as to render their doings unintelligible or unworthy of credence, and their action entirely unreliable for any purpose." See also Weaver vs. Given, [Ibid 140.]

Batturs vs. Megary, [Ibid, 162.] Gibbons vs. Stewart, 2 Brewster, 1.

§ 304. It was said by the Supreme Court of Pennsylvania, in Chadwick vs. Melvin, (Brightley's Election Cases, 551,) that "there is nothing which will justify the striking out of an entire division, but an inability to decipher the returns, or a showing that not a single legal vote was polled, or that no election was legally held." Undoubtedly the general rule is that if legal votes have been cast in good faith by honest electors, it is the duty of the court or tribunal trying a contest to ascertain their number and give them due effect, notwithstanding misconduct or even fraud on the part of the election officers. Such fraud or misconduct may destroy the value of the officer's certificate, and may subject him to severe punishment, but the innocent voter should not suffer on that account, if by any means his rights can be upheld. And yet the statement just quoted from Chadwick vs. Melvin, is too sweeping. The question is not whether a single legal vote has been polled, but whether the voice of the majority has been fairly expressed. In Biddle and Richard vs. Wing, (Cl. & H., 504,) the rule is more correctly stated as follows: "Indeed nothing short of the impossibility of ascertaining for whom the majority of votes were given, ought to vacate an election, especially if by such decision the people must, on account of their distant and dispersed situation, necessarily go unrepresented for a long period of time."

§ 305. Although the fact that the officers of an election were not sworn, will not of itself, and in the absence of fraud, render the election null and void;

yet if fraud be proven, or it appear that such officers have wilfully disobeyed the law or disregarded their duty, the fact that they were not sworn, may become an important fact in determining whether or not the poll shall be entirely rejected. It is impossible to define exactly the degree of irregularity and illegality in the conduct of an election which will render it void, but perhaps the best rule upon the subject is this. If the voice of the electors can be made to appear from the returns, either alone or aided by extrinsic evidence, with reasonable clearness and certainty, then the election should stand; but not otherwise. This rule has made necessary another, viz: That if it appear that illegal votes have been admitted, it is the first duty of the tribunal trying the contest to purge the poll of such illegal votes, if there is evidence upon which this can be done, and effect should be given to the majority of the good

votes.

§ 306. The general rule is that the ordinary rules of evidence apply as well to election contests as to other cases. The evidence must therefore be confined to the point in issue, and must be relevant. The burden of proof is always upon the contestant or the party attacking the official return, or certificate. The presumption is that the officers of the law charged with the duty of ascertaining and declaring the result, have discharged that duty faithfully. In a contested election case, however, where the question is who received the highest number of votes, this presumption may be rebutted and overcome by proof. If a disqualified voter declines to answer as to how he voted, or if he cannot be found

so as to be examined as a witness, a good deal of latitude should be allowed in showing the fact by circumstantial evidence. It may be shown that an illegal voter asked for a particular ticket at the poll; that no scratched tickets were voted, and the like. [Thompson vs. Ewing, 1 Brewst., 68-9.]

§ 307. A statute which confers upon any elector of the proper county the right to contest, at his option, the election of any person who has been declared to be duly elected to a public office, to be exercised in and for such county, does not oust the jurisdiction of the proper court, on information in the nature of a quo warranto, to inquire into the authority of any person who assumes to exercise the functions of a public office or franchise, and to remove him therefrom if he be a usurper, having no legal right thereto. [People vs. Holden, 28 Cal., 123.] "The two remedies are distinct," says the court in that case, "the one belonging to the elector in his individual capacity, as a power granted, and the other to the people, in the right of their sovereignty." See also, People vs. Jones, (20 Cal., 50.)

§ 308. It seems to be settled that the title to an office confers upon the person elected a right to the fees and emoluments thereof, from the commencement of his legal term. And, accordingly, it has been frequently held that an action for money had and received will lie by the officer de jure against one who has intruded into the office by color of a certificate of election, to recover fees received during the time of such intrusion. (Arris vs. Stukely, 2 Mod., 260. 1 Selw., N. T. 68, Crosbie vs. Hurley, 1 Ale & Nap., 431. Mayfield vs. Moore, Brightley's Election Cases, 605.)

The fees and emoluments "are incident to and as clearly connected with the office as are rents and profits to real estate, or interest to bonds and such like securities." (Glascock vs. Lyons, 20 Ind., 1. Petit vs. Rosseau, 15 La., 239. People vs. Smythe, 28 Cal., 21. People vs. Tiernan, 30 Barb., 193. People vs. Pease, 27 N. Y., 56. Hunter vs. Chandler, 45 Mo., 453. United States vs. Addison, 6 Wall., 291. Mott vs. Connolly, 50 Barb., 516.) In Mayfield vs. Moore, (supra,) it was held, however, that if the incumbent received his commission bona fide, he will be allowed in such action his reasonable expenses in executing the duties of the office, but otherwise, if his intrusion was without pretense of legal right.

§ 309. In the case of United States vs. Quinn, [Brightley's Election Cases, 592,] Judge Woodruff of the United States Circuit Court, for the southern district of New York, had occasion to discuss the constitutionality of the 20th section of the act of Congress of May 31, 1870, punishing a fraudulent registration for the purpose of voting for a member of Congress. In a very clear and able opinion he demonstrates, that Congress has power to punish frauds perpetrated in an attempt to prevent a fair election of a member of that body. This is not an attempt to fix the qualifications of electors for Representatives in Congress. These are fixed by the State, and are the same as those belonging to elec tors for members of the most numerous branch of the State legislature. It only provides in effect that "it shall be an offense against the laws of the United States, to contribute by fraud or violation of the