the Courts. The question arose in the case of Governor Barstow of Wisconsin, whether the person occupying the office of chief executive of a State can be required to appear before the Courts and defend against another claimant for that office. It was contended that the three departments of the State government were equal, co-ordinate, and independent of each other, and that each department must be the judge of the election and qualifications of its own members, subject only to impeachment and appeal to the people; that therefore the question as to who is entitled to the office of Governor, can in no case become a judicial question. But this doctrine received no countenance from the Court to which it was addressed, and it is believed to be without the support of any judicial authority. If adopted it would leave no peaceable and constitutional means for ousting a successful usurper from either of the departments of the State government. (Cooley's Const. Lim., 624-5, note 1.)

§ 390. In People vs. Cicote, (16 Mich., 283,) the opinion is expressed that one claiming a public office has a constitutional right to a trial by jury, and that this right cannot be taken from him by any law which shall undertake to make the decision of a canvassing board final. But see Ewing vs. Filley, 43 Penn. State, 384. Commonwealth vs. Leech, 44 do,

332.

§ 391. We have already seen that when a return is shown to be fraudulent and set aside, it proves nothing, and that other evidence must be resorted to, to show the number of votes cast and for whom cast. It is very clear that if the returns are set aside

no votes not otherwise proven, can be counted. And if there are three candidates voted for at a given precinct, and the return is set aside, it is not enough to show the whole number of votes cast, and the number cast for two of the three candidates; it will not be presumed that the third candidate received the remainder. In such a case each candidate must prove, by calling the voters as witnesses or otherwise, the number of votes received by him. Thus in a recent case in New York, it appeared that at an election for Mayor of the city of Albany, seven hundred and twenty-nine votes were given according to the poll list. While the votes were being counted by gas light (having been turned from a box upon the table,) the light suddenly went out, and before the gas was relighted, some of the ballots were abstracted, so that upon completing the canvass only six hundred and fifty-two ballots for Mayor were found. Of this latter number

Geo. H. Thatcher received
Edmund L. Judson
Thomas McCarty

66

460

113

79

Upon the trial of a contest, growing out of this election, two of the above named candidates, Judson and McCarty, made proof of their vote, from which it appeared that Judson received two hundred and McCarty one hundred and thirty-four votes.— Thatcher made no proof of his vote, but claimed that as the whole number of votes cast was shown to have been seven hundred and twenty-nine, he was entitled to the difference between that number and the combined vote proven for the two other candidates. This position was not upheld by the Court,

and was clearly untenable. It appears from the report of this case that the only question made was, as to whether Thatcher's vote should be ascertained by deducting the combined vote proven for the other candidates from the number of votes canvassed, to-wit: six hundred and fifty-two, or from the number actually cast, to-wit: seven hundred and twenty-nine. The Court below had allowed Thatcher the difference between the sum of the votes cast for the other candidates, and the whole number cast and the Supreme Court having held this to be error, went no further. From all that appears in the report of the case Thatcher did not prove any vote at all. He relied upon the return, but that should have been set aside, if, as appears, to have been the case, a gross fraud had been perpetrated in the abstraction of part of the ballots before the canvass, and in substituting others, the number abstracted, and the number substituted, being wholly uncertain. Such a return cannot be corrected by proof. It must be wholly disregarded, and the vote otherwise proved, if possible, and if other proof is not possible, the election is void. (People ex rel, Judson vs. Thatcher, 7 Lansing, N. Y., 274.)

§ 392. It is not necessary, in order to set aside a return for fraud, that it be shown that the officers of elections participated in the fraud. If third persons unlawfully possess themselves of the ballot box during or after the close of the election, before the canvass, and destroy the ballots or a portion of them, or abstract some of the ballots and place in the box others, or in any manner so tamper with the ballots as to change or render uncertain the result; such

facts being proven, will render the canvass and return void, although the canvassing officers may have had no connection with the fraud, and no knowledge of it. (People vs. Cook, 8 N. Y., 86. People ex rel Judson vs. Thatcher, supra.)

§ 393. It has been held by the Supreme Court of Mississippi, that "evidence that one of the registrars being intoxicated, took a portion of the ballots in a handkerchief away from the other registrars, and did not return them until next morning, is not admissible without showing that some of the ballots had been lost or altered, or that the plaintiff was in some manner affected thereby." (Pradat vs. Ramsay, 47 Miss., 24.) This decision was put upon the ground that the misconduct of the officer was a mere irregularity, and did not, therefore, prima facie, affect the result; but this was evidently a misapplication of that rule. One of the most important and imperative requirements of the law of elections. is, that the ballots from the time they are cast until they are canvassed, must be safely and securely kept. Frauds upon the ballot box are very frequently perpetrated by tampering with the ballots after they are cast, and before they are counted. It is for this reason that in many of the States there are statutes requiring that the ballots be publicly canvassed, immediately upon the closing of the polls. These are most excellent statutes, and the author has found with surprise and regret, that in several of the States there are laws allowing the election officers to hold the ballot boxes a number of days before making public the canvass. If such laws had been framed for the purpose of enabling

corrupt parties to perpetrate frauds, they could scarcely have been more aptly framed. (Wallace vs. Simpson, 42d Congress.) It is clear that where the law which requires the ballots to be safely and securely kept until canvassed, and the result announced, has been so grossly violated as to have afforded opportunity for fraud or tampering, the burden of proof should be shifted. If the ballots have been kept according to law, the presumptions are all in their favor, but if a drunken man has been allowed to carry them away and keep them in an exposed place over night, as in Pradat vs. Ramsay, supra, the presumption is against them, and proof should be required that they are in fact the real ballots cast. In all such cases, the evidence should go to the jury, and they should determine upon the whole case, whether the ballots counted were in fact the same ballots cast.

§ 394. The practice in cases of contested election in the House of Representatives of the United States is not, and perhaps never can be, very definitely settled, for the reason that each House is the final judge of all questions arising in such cases, and neither House is absolutely bound either by the action of any previous House, or by the statute itself. The statute, however, as we have seen, is regarded as a rule of decision, and as such is generally followed, and should never be departed from without the very strongest reasons.

In addition to what has already been said touching the practice in these cases, the following suggestions are made concerning the mode of instituting and carrying on a contest, under the statutes