after it has been admitted. Nor has the mere statement by a witness that a voter was or was not a resident, without giving facts to justify his opinion, been considered sufficient to throw out such a vote. The testimony shows a number of instances where a witness would state positively the residence or non-residence of a voter on some theory of his own, or some mistake of fact, when other testimony would show with entire clearness that the vote was legal. After a vote has been admitted, something more is required to prove it illegal than to throw doubt upon it. There ought to be proof which, weighed by the ordinary rules of evidence, satisfies and convinces the mind that a mistake has been made, and which the House can rest upon as a safe precedent for like

cases.'

§ 372. Of course some weight is to be given to the decision of the judges of the election, whose province it is in the first instance to admit or exclude votes. Their action is to be presumed correct until it is shown to have been erroneous. The other rule stated above is equally sound. Whether a person is, or is not, a resident of a particular place is often a question of law as well as of fact. Unless the facts are stated, the question, in so far as it is a question of law, cannot be determined, and that question is not for the witness to decide, but for the court.

§ 373. The courts will not undertake to decide upon the right of a party to hold a seat in the legislature, where by the constitution each House is made the judge of the election and qualifications of its own members, but a court may by mandamus, compel the proper certifying officers to discharge their duties

and arm the parties elected to such legislative body with the credentials necessary to enable them to assert their rights before the proper tribunal. And, inasmuch as canvassing and returning officers act ministerially and have no power to go behind the returns, or inquire into the legality of votes cast and returned, a court will by mandamus compel them to declare and certify the result as shown by the returns, because that is their plain duty, but the award of a certificate of election under such mandate, will not conclude the legislative body in determining the election. (O'Farrell vs. Colby, 2 Minn., 180.)

§ 374. The actions provided by the statutes of most of the States to try the right to an office are in the nature of a quo warranto at common law. They differ in the formula of proceeding from proceedings by information, or by writ of quo warranto, but they are, as a general rule, in substance the same, and governed by substantially the same rules which regulated proceedings under the prior practice. Such was the ruling under the statute of New York, which is not unlike the statutes of most of the other States. (People vs. Pease, 30 Barbours, 588.)

§ 375. Where the statute creates a board for the purpose of determining election contests, and confers upon such board exclusive jurisdiction in such cases, the courts are deprived of jurisdiction to pass upon the results of any such contests. But in such a case the proper court may, by mandamus, compel such board to organize and proceed according to law to the discharge of its official duties. (Batman vs. McGowan, 1 Met., Ky., 533.)

§ 376. The statute of Kentucky, under which this case arose, provided for a board to be composed of the presiding judge of the County Court, the clerk thereof, and the sheriff. It also provided as follows: "but if either is a candidate, he shall have no voice in the decision of his own case. If from any cause two of the before named persons cannot, in whole or in part, act in comparing the polls, their places shall be supplied," &c. Under this statute it was held that the board must be composed of persons entirely free from any interest, and that the sheriff and coroner, both being candidates, could not act. It would be a dangerous practice to permit two candidates to act upon such a board, for although neither one of them could vote for himself, yet they might vote for each other. They might thus have a common interest to subserve, or they might combine together to aid each other. The policy of all such legislation is to guard against improper combinations, and to secure just and impartial decisions.

§ 377. Where notice of contest is to be given within a given number of days after the determination of the result, the true rule for computing the time is to include the first and exclude the last day, or vice versa. Hence it was held in Kentucky that where the certificate of election was issued on the sixth day of the month, and notice of contest was served on the sixteenth day of the same month, there was not ten days notice as required by law. (Batman vs. Magowan, supra.)

§ 378. In the case of Bennett, petitioner, (32 Maine, 508,) it is held that under a statute which requires that "the Governor and Council shall open and com

pare the votes returned," &c., the act of opening and comparing such votes is an official duty to be performed by the executive department. And it was accordingly held in that case that the courts of the State could not entertain the inquiry whether that duty had been correctly or incorrectly performed, and a mandamus to compel the Governor and Council to certify the election of the petitioner to the office of County Commissioner, was refused, upon the ground that the judiciary could not control the executive department of a State, in the performance of its official functions. It is very clear that this ruling was correct, for mandamus will not lie to control the action of any board or officer, in determining the result of an election. But it does not follow that because the executive of the State and the Council are constituted the returning boardtheir conclusions are final. If a board composed of the Governor and Council shall commit an error either by accident or design, or by a misconstruction of the law, in determining the result of an election, the party injured can undoubtedly have his remedy in the courts of justice, the same as if the result had been declared by a board composed of other persons.

§ 379. The fact that a person has received the certificate of election to an office, and entered upon the discharge of the duties thereof, does not oust the proper court of jurisdiction to try the title to the office. The certificate issues upon the prima facie case as shown by the returns, but the court may go behind the returns, and upon the merits find a different result. (Ex parte Ellyson, 20 Gratt, Va., 10.)

And in Virginia the jurisdiction of the courts is held not to be limited to cases of contest between competing candidates. Under the law of that State an election may be contested, although but one person was voted for at the election. (Ib.)

§ 380. The rule which admits in evidence on the trial of a case of contested election, the original tally sheet, duly certified by the officer of election, as prima facie evidence of the election of the person, for whom it shows a majority of the ballots to have been cast, was reaffirmed in Ohio, in State vs. Donnewirth, (21 Ohio, 216.) We have already called attention to the provisions of the statute of Ohio, in relation to the tally sheets to be kept by the officers of the election, duly certified, and returned. And it may be observed here that the admissibility, and value of the election papers, depends somewhat upon the statutes governing the election in question. But generally, all papers required by law to be kept in connection with the conduct of an election, may be received in evidence upon being properly identified.

§ 381. While a continuance or postponement for a brief period of time may be allowed in a contested election case, where the court or tribunal trying the same, shall in its discretion believe that the ends of justice will be subserved thereby, yet the ordinary rules governing applications for continuances, in the nature of the case, cannot apply to a litigation of this kind. The proceedings must be regarded as in their nature so far summary, as to take them out of the operation of the general rule, which allows continuances from term to term, in the discretion of the court. (Kellar vs. Chapman, 34 Cal., 635.)