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The charge of the judge, at the trial, and the exception taken by the relator, present the main question in controversy in this action, and the only one of importance demanding consideration. It is certainly a question far-reaching in the results which must follow its determination, for upon its just decision must depend the value and purity of the elective franchise. When we reflect that, under the present constitutional provisions prevailing in this State, we not only elect all legislative officers, but most of our judicial, executive and administrative, it cannot fail to be seen how vital it is to the success and permanency of our institutions that the voice and will thus expressed be that of those constitutionally qualified thus to speak. It is of but little moment that constitutional qualifications, as preliminary to the exercise of the elective franchise, are prescribed, and that those thus entitled exercise that right, inestimable to freemen, if persons having no such qualifications may exercise the same right, and thus thwart and subvert the will of the legal voters. Such certainly could never have been the intent of the framers of our system of government, and such results, it has not been heretofore supposed, were to be anticipated from our elective system.
By section 5 of article 1 of the Constitution of the United States, each house is declared to be the judge of the election returns and qualifications of its own members. A similar provision, as applicable to our State legislature, is found in the Constitution of this State. (§ 10, art. 3.) And a like provision in most if not all of the charters of the various municipal corporations of this State will be found, as applicable to the election of the members of the common councils thereof.
So far as I have been able to discover, the rule is universal in all legislative bodies, upon inquiries as to the election of members thereof, to scrutinize the qualifications of the voters and to deduct or disallow all votes cast for any candidate by non-qualified voters. This rule seems to be well established in such cases, and it is not perceived that any substantial reason can be suggested why a different rule should obtain in a civil suit or proceeding to determine the right of an individual to a
particular office. This rule was distinctly recognized and affirmed by the House of Representatives in the election case of Vallandigham and Campbell. (Cong. Globe, vol. 41, p. 2317, and following.) In the extended debate had upon that case, all the members conceded that the votes of illegal or non-qualified electors must be deducted or disallowed; and the main point of difference in the discussion was as to the manner of establishing such disqualification. It was contended by some members that it could only be shown by the oath of the voter himself, while others maintained that hearsay evidence of such disqualification was admissible. Numerous precedents are cited at page 2320, fully sanctioning the doctrine that hearsay evidence can be received. At page 2319, a case was cited, where, before the election committee of the House of Commons, in England, Mr. Maule objected that the declarations of one John Nowlan were not evidence against the sitting member. Mr. Thessiger, since Lord Chancellor, now Lord CHELMSFORD, in reply, said: "In the Southampton case it was held evidence may be given of the declaration of a person, even after voting, though it may tend to affect him with penal consequences. In the Ripon case the voter had stated to two persons, in the months of June and July, 1832, that he had no vote, and that his aunt was tenant of the house; the election took place in the beginning of 1833, and the declarations were held admissible. A voter who has voted for the sitting member is always considered as a party, and it is on that ground that his declarations are admissible. The question is always considered to be between the voter and the party questioning his vote, and not merely between the sitting member and the petitioner." The committee resolved that the evidence should be received.
The Constitution of this State declares who may exercise the elective franchise. Those entitled to vote at any election are, every male citizen of the age of twenty-one years who shall have been a citizen for ten days and an inhabitant of this State for one year next preceding any election, and for the last four months a resident of the county where he may
offer his vote. (§ 1, art. 2.) It follows that none others than those possessing these qualifications can lawfully vote.
All votes are to be by ballot, and offered to the inspectors of election, on the day of the election, and it is made, by statute, the duty of each inspector to challenge every person offering to vote, whom he shall know or suspect not to be duly qualified as an elector. (1 Rev. Stat., 5th ed., p. 433, § 36.) And section 41, same page, declares that in case any inspector of election shall knowingly and willfully permit or suffer any person to vote at any election, who is not entitled to vote thereat, the said inspector so offending, on conviction, is to be adjudged guilty of a misdemeanor. If a person offering to vote is challenged, it is made the duty of the inspectors to administer to the voter the preliminary oath prescribed by the statute, and to put such questions to the voter as may tend to show his right to vote; and if any person shall refuse to take such preliminary oath, or to answer fully any questions which shall be put to him, his vote shall be rejected. (1 Rev. Stat., 5th ed., p. 430, §§ 18-20.) If the person offering to vote shall persist in his claim to vote, after the inspectors shall have pointed out to him wherein his right to vote shall appear to them deficient, the inspector shall then, if the challenge is not withdrawn, administer the general oath set forth in the statute. If the oath is refused to be taken, the vote is to be rejected. (Id., pp. 430, 431, §§ 21, 22, 24.)
It is seen, therefore, that the inspectors have no authority, by statute, to reject a vote, except in the three cases: after refusal to take the preliminary oath, or fully to answer any questions put, or on refusal to take the general oath. And the only judicial discretion vested in them is to determine whether any question put to the persons offering to vote has or has not been fully answered. If the questions put have been fully answered, and such answers discover the fact that the person offering to vote is not a qualified voter, yet if he persists in his claim to vote, it is imperative upon the inspectors to administer to him the general oath, and if taken, to receive the vote and deposit the same in the ballot box. These are
all the safeguards the legislature have thought proper to provide to insure the prevention of fraudulent or illegal voting, and this leaves but little discretion to the inspectors. Their duties, except in the single instance adverted to, are simply ministerial in the reception of the votes, and entirely so in counting and making returns thereof. The legislature have left to those bodies having the power to judge of the return and election of their own members, to correct any abuses which may have resulted in such election, and to judicial investigation, where the legal rights of individuals are concerned or affected, to apply such remedies as the nature of the case calls for.
An action is prescribed by law, in the nature of a quowarranto, to determine, as well the question of usurpation of the person in office as the claim of the person asserting his right thereto. In this action, the determination disposes as well of the public interest as the private right. It is not of so much importance, so far as the public is concerned, which of two claimants shall discharge the duties of an office; but the private right of an individual to the fees and emoluments of an office is properly and legitimately the subject of judicial cognizance, and to adjudicate upon this right, it becomes essential to determine who was legally and duly elected or appointed to it, and who entitled to discharge its duties and receive and enjoy its fees and emoluments. The provisions of the Code, in reference to this action, are ample to cover and secure, as well the interests of the public as the private rights of the parties. The determination of those rights necessarily leads to an investigation into the title of the claimant to the particular office, and such investigation must result in a determination of the legality of the election or appointment of the one or of the other.
It is made the duty of the board of county canvassers, upon the statement of votes given, to determine what person, by the greatest number of votes, has been duly elected to any office mentioned in said statement. (1 Rev. Stat., 5th ed., p. 438, § 10.) County treasurers of the several counties of this State are to be elected at a general election and hold their office for
three years. (Id. p. 406, § 17.) And the certificate of the board of canvassers authorized to canvass the votes given for any elective office, is made evidence of the election of the person therein declared to have been elected. (Id., p. 410, § 22.) But such certificate is only prima facie evidence of the title of the person receiving it, to the office therein mentioned. In all cases where the proceeding is by quo warranto, or in an action of that nature, it is held that such proceeding is instituted to try the right to the office directly, and it is competent to go behind the certificate, which would otherwise be conclusive, to ascertain the real facts of the case. (The People v. Seaman,
5 Denio, 409; People v. Ferguson, 8 Cow., 102; People v.Van Slyck, 4 id., 297; People v. Vail, 20 Wend., 12.) In this last case, BRONSON, J., says: "Such proceeding reaches beyond those evidences of title which are conclusive for any other purpose, and inquires into and ascertains the abstract question of right." He also says: "In those legislative bodies which have the power to judge of their own members, it is the settled practice, when the right of the sitting member is called in question, to look beyond the certificate of the returning officer; and I think a court and jury, with better means of arriving at truth, may pursue the same course." But while it is conceded that this proceeding is to ascertain the very right of the person to the particular office, and that by means of it any negligence, mistake or fraud of the inspectors or canvassers in their proceedings may be corrected, yet it is contended, if the inspectors have received and allowed votes to a party, given by persons not qualified to vote, such proceeding is final and conclusive, and the party thereby defrauded of an office to which he was duly elected, by having received the greatest number of legal and qualified votes, has no remedy, but must submit, as well to the loss of the office as of the fees and emoluments growing out of it. I cannot assent to such a proposition. What is it that confers title to the office, and the legal right to the reception of its emoluments? It surely is the fact that the greatest number of qualified voters have so declared their wishes at an election
held pursuant to law. It is not the canvass, or estimate, or certificate which determines the right. These are only evidences of the right, but the truth may be inquired into, and the very right ascertained. When it is so ascertained, the legal consequences follow that the person usurping the office is ousted, the person legally entitled takes the office and its fees, c., and recovers from the usurper the fees or emoluments belonging to the office, received by him, by means of his usurpation thereof. If the term of the office should have expired before the final determination of the question, it follows that the successful party cannot take the office, but he will be none the less entitled to recover the fees and emoluments to which he was legally entitled, which may have been received by the usurping claimant. Now, can a person be deprived of the fees,c., by the votes of persons not qualified to cast them? It would seem that the statement of the proposition furnishes its own answer. The Constitution prescribes who may vote, and it is needless to say that none others can lawfully do so. But if, through inadvertence, fraud or mistake, the votes of persons having no right so to vote are taken and counted for a particular candidate, and he is thereupon, by reason of counting and allowing such votes to him, declared duly elected to a given office, and enters upon the discharge of its duties, and receives the fees and emoluments pertaining thereto, can he interpose such illegal votes to the claim of the person rightfully elected by the greatest number of legal and qualified voters? Can he make title to the office by the votes of those who have no legal or constitutional right to vote — in other words, by the wishes of those not voters? In my opinion, clearly not. The very right to the office is determined by the fact, to whom was the greatest number of legal and duly qualified votes given? Or suppose that instead of the voting having been by ballot, it had been vivavoce, and the relator in the present case had 1,702 persons declaring for him, for county treasurer, and the defendant 1,698, and of those declaring for the relator it conclusively appeared on the trial that ten, fifteen or twenty of those thus declaring for him were women, minors
or aliens, and thus not voters, and that all those declaring for the defendant possessed the legal qualifications of voters, could there be a moment's doubt as to which was legally entitled to the office? I do not see that there could, and the supposed case is, in substance, that now under consideration. How can those who have no legal right to interfere with or be heard at an election, deprive the legal and qualified voters of their legitimate choice, or the person duly elected by them to an office, of its emoluments and advantages? A vote is but the expression of the will of a voter; and whether the formula to give expression to such will be a ballot or viva voce, the result is the same: either is a vote. It is a paradox to say that a vote can be given by one not a voter, and as it is the greatest number of votes which elects a candidate and gives title to the office, it follows logically that those ballots given or handed in by persons not voters are not votes, and cannot, therefore, be rightfully estimated or have any influence upon the result. Ordinarily there would be great difficulty in separating or ascertaining which ballots are legal and which have no validity whatever, as being given by non-voters. But in the case at bar it is clearly ascertained that five ballots or votes given and counted for the relator were cast or given by persons not qualified to vote, and he consequently, in truth and in fact, had five votes less than have been counted and allowed to him. They must, therefore, be subtracted from the total vote allowed to him, and such subtraction leaves him a less number of votes than were given for the defendant.
In the case of People v. Van Slyck (supra), JONES,arguendo, says: "To make a choice of the defendant within the provisions of the statute, there should be a majority of legal votes;" and such seems evidently to be the view of the court. It hardly needs argument or illustration to show that the votes, contemplated by the framers of the Constitution and by the legislature, in declaring the person having the greatest number of votes should be elected and entitled to the particular office, meant thereby legal votes, those and those only cast by voters possessing the constitutional qualifications. In my
opinion, ballots cast by females, minors, aliens, or those not having the constitutional qualifications, are not votes within the meaning and intent of our Constitution and election laws. Cole on Quo Warranto (p. 110), citing a number of English cases, lays down these propositions, which harmonize with the views already suggested. He says that the party may not have been duly elected. This may happen, although he was "qualified" to be elected, and the election itself was neither void nor irregular, as when he did not obtain a majority of legal votes. The burgess roll is prima facie evidence of a party's right to vote as a burgess, at an election. Indeed, no question can be put to him as to his right to vote, but only to his signature to the voting paper delivered in by him, and his identity with the person named in the burgess roll, and whether he has already voted at that election. But the burgess roll is not conclusive as to the voter's title, upon an application for a quo warranto
information against the party elected, and, therefore, the relator may show by affidavit that although the defendant had a colorable majority at the election, yet that certain of his votes were bad ones, for specified reasons, and that, deducting such bad votes, the relator or some other candidate had the majority of legal votes. So it may be shown that some of the voting papers for the defendant were defective and insufficient, and that deducting them the defendant had not a majority of legal votes. The same doctrine was enunciated in the case of Rex v. ViceChancellor, c., of Cambridge (3 Burr., 1647), where a mandamus was awarded to put the Earl of Hardwicke into the office of High Steward of the University of Cambridge, on the ground that one of the votes given against him, which produced a tie, was an illegal vote, cast by a person not having the right to vote. The proctors had declared the vote to be equal, and, therefore, no election. Lord MANSFIELD, after discussing the qualifications of Mr. Pitt, whose vote had been given against the Earl of Hardwicke, and thereby produced a tie, arrived at the conclusion that he was not a legal voter; and if so, he says, there is a majority of one for Lord Hardwicke, unless the other side can disqualify some of those who
voted for him. He further says: "The declaration of the proctors cannot affect the substantial right. The right of election appears to be in Lord Hardwicke, and I am very clear that the foundation of the rule should be the election." Justice WILMOT said: "As to the declaration of the proctors, I think it immaterial, for the question depends, not upon that, but upon the real majority of legal votes. This declaration cannot alter or affect that. If they had made a declaration, and even if such their declaration had been contrary to the truth of the fair and real right, the court must have taken up the matter upon the true and real merits; for the right to the office attached in Lord Hardwicke, upon his having a majority of legal votes. If he had a real right, this court ought to give activity to it; and the omission of a declaration of the proctors, or the falsity of it, cannot affect their judgment concerning the legality of the right." Therefore, he adds, "Lord Hardwicke had the majority of legal votes."
We have seen, from the authorities and cases cited, that the practice is universal, when a scrutiny is instituted to determine the right to an office by legislative bodies, to reject all votes given or cast by persons not duly qualified to vote; and upon such investigation, the declarations of the person casting the vote have been admitted and received as evidence of his qualification or want of qualification. It is hearsay evidence, and yet, upon well-settled and uniform practice, has been allowed. The learned note to 3 McCord's Reports (p. 230), on hearsay evidence, distinctly announces this doctrine. He says, under the 23d head, the declaration of a voter may be given in evidence to set aside the election; as to diminish the poll, by taking an incompetent vote off, or to prove bribery, c., but they are not admissible on a charge against the candidate for bribery, c. They are admitted to annul votes, but not to set aside the election by disqualifying the member on account of his bribery, c. (Citing the case of Milborne Port, 1 Doug. Election Cases, 67; Case of Joel Chester, 1 id., 76;Petersfield Case, 3 id., 6; Worcester Case, 3 id., 129;Shaftsbury Case, 3 id., 150.) This doctrine is referred to with approbation in Cowen Hill's Notes (vol. 2,
p. 322), and the learned note in 3 McCord is referred to as the source from which the editor had obtained the remarks and references quoted by him. These writers, and the cases cited by them, distinctly recognize the doctrine that upon a scrutiny had, in reference to the validity of an election, the votes given by unqualified voters may be deducted to diminish the poll by being taken off as incompetent, and the votes so given may be annulled or disregarded or rejected. In the case at bar the disqualification was proven by the voter himself; but these authorities abundantly sustain the position that the declaration of the voter, as to his want of qualification, would have been admissible and legal evidence.
It is urged, however, that the act of the inspectors, in receiving and depositing the ballot, is judicial, and, therefore, cannot be reviewed in this action. It is supposed that the contrary has been satisfactorily shown, and that the universal practice of the courts, in actions or proceedings like the present, where they have inquired into the very right of the case, refutes this assumption. In the case of The People v.Van Slyck (supra), it was urged by the counsel for the defendant that the certificate of the determination of the board of canvassers was conclusive evidence of the election; that it could neither be impeached nor contradicted; that the authority exercised by the board of canvassers was judicial, and that if the Supreme Court had jurisdiction to review the determination of the board of canvassers, their reviewing power could only be exercised through the medium of a certiorari, and until reversed in this form, it remains valid and conclusive, and cannot be questioned by an information in the nature of a quowarranto, These views were repudiated by the court, in that case, which held that the act of the canvassers was not judicial, but merely ministerial, and that the trial, in quo warranto, is had upon the right of the party holding the office. This doctrine was promulgated nearly forty years since, in this State, and has, so far as I can ascertain, been acquiesced in and sustained in all cases, and I think it ought not now to be disturbed. In ThePeople v. Ferguson (supra), it was urged that the court
could not go behind the ballot boxes, that such a principle would be of the most dangerous tendency. Chief Justice SAVAGE most correctly said that the object of an election is that the person receiving the greatest number of votes in his favor shall have the office designated by the electors; that he could not assent to the proposition that you may not look beyond the ballot boxes for testimony, because of the danger of perjury and subornation of perjury. He considered the question fairly before a jury, and to be proved, like all other facts, by the best evidence that the nature of the case admits of.
We are much pressed with the argument that it would be attended with great inconvenience if we permit a party to try his right to an office by showing that his adversary received a greater number of illegal votes than the ascertained majority given him. It is said that in a general State election the time necessarily occupied in such a trial might consume more than eighty-three years. It is the first time I have ever heard it urged that a party who had a conceded right should not have a remedy to enforce it, because a large consumption of time would take place before his right could be established. If a party has a legal title to an office, it surely can be no legal reason for denying him the opportunity to establish it, that such process will require the examination of a large number of witnesses and consume much time in the proceeding. Rights of parties cannot be determined on such a basis. The case of Rex v. Cambridge only required the examination into the qualification of one voter, and it was entertained by the Court of King's Bench, but not for that reason. Ex parte Murphy (7 Cow., 153) involved an inquiry as to two illegal votes, and it clearly would have been entertained, if they had influenced the result of the election. The case of ThePeople v. Cook (14 Barb., 259; S.C., 4 Seld., 67) involved an inquiry into the title of the contestant to the office of State Treasurer, and who had been voted for at a general State election. I do not find it was urged in that case that the action ought not to be entertained, on the ground of inconvenience or the great length of time which was
occupied in the investigation. The views expressed by Judge WILLARD, in this court, in the case of The People v. Cook
(supra), are sound, and should be adhered to. He says: "We are not called upon to say that every possible question arising under the election law may be corrected in this way. It is enough that the principle contained in The People v. Ferguson sustains the ruling of the court below. That case has stood the scrutiny of more than a quarter of a century, and has neither been disturbed by the new Constitution nor the repeated revision of the election law. I see nothing in the present case that requires us to depart from it." He adds, and what he says is as applicable to the present case as the one then under consideration: "Nor is there any danger to be apprehended to the security of our institutions by pursuing this practice. The right to an office is no higher than a right to life, liberty or property. There is no principle that should withdraw the first from the cognizance of a court and jury, to the exclusion of the last. Both will, indeed, be safe under the administration of the ordinary tribunals." We think, therefore, the charge of the judge at the circuit, that it was to be determined upon the evidence adduced which candidate had the most lawful votes, and if they found that the defendant had the greatest number of legal votes, then he was entitled to the office, and their verdict should be in his favor, was correct, and that the verdict on that ground should not be disturbed. The motion to strike out the testimony of Conrad Hoch was properly denied. It was for the jury to say, from the whole testimony, whether, in fact, his vote had been given to the relator. He stated unequivocally that he voted for Smith, and, on cross-examination, he testified that it was said Smith's name was on the ticket; that was all he knew about it. It was for the jury to say, from all the circumstances related by him, whether or not he voted for the relator. We are to assume that they believed he did. The objections taken to the refusal of the motion to strike out the testimony of Shoat cannot, we think, be sustained. The witness had testified that he did not know whether he voted or not for Smith, and the other matters stated
by him may be regarded as wholly immaterial. The other exceptions do not seem to call for any further observation.
It seems to us that the judge was correct in stating to the jury that when it was proven that a man was alien born, and there was prima facie proof that he had never been naturalized, or otherwise became a citizen, the vote given by him must be striken out; and the burden of proving citizenship was either upon the voter or the party claiming his vote to be legal. If the views herein expressed are sound, then this charge was unexceptionable. So was that part of the charge correct in relation to the witness Rivinot, who testified that he was born in France, and had voted, and there was no evidence tending to show that he had ever been naturalized. The judge in that case charged that the legal presumption was that he had been naturalized. No suggestion was made or evidence given, when the witness was on the stand, that he had not been naturalized. He had voted, and the presumption was that he had voted legally. It was not for the court to say, as matter of law, that the vote was illegal. In this state of facts, the presumption was that he was a legal voter, not that he had committed a crime. On the same ground the court might have been asked, if he had stated he was native born, that his vote be excluded because it was not proven he had attained the age of twenty-one years. The legal presumption would be that he had legally exercised the privilege of voting, until some facts appeared which would raise a contrary presumption.
The judgment appealed from should be affirmed with costs.