Chalmers, J.,
delivered the opinion of the court.
This is a contest under § 150 of Code of 1880 over the question [662]*662of who received the greatest number of legal votes for the office of sheriff of Monroe County on the 6th day of November, 1883.
' The petition contains the most minute as well as sweeping charges of fraud at said election upon the part of all connected with it, most of which are as specifically denied, but as to some of which demurrers only were interposed.
As the case must go back for a new trial, we shall allude only to such questions as must necessarily be decided, since it seems to us that the governing principles underlying these inquiries are always the same and are generally well known.
The cardinal rules controlling such cases are these: Where the charge is fraud, the burden is always upon the contestant to show both fraud and injury to himself in the conduct and count of the canvass, and that, in truth and in fact, he received the greatest number of legal votes. Until he has proved both of these ordinarily he can never recover. Unless he received a majority of the legal votes he has no right to bring his suit, and he can complain of no sort of irregularity or fraud save when he affirmatively shows that he was thereby damaged; the fact that he may have been so is not enough, though he may show such possibility as tending to prove that in fact he was injured, and he may show this by any proof admissible in any other inquiry as to fraud. But always his obligation is to prove that he was really elected by a plurality or majority of legal votes. Unless by the whole proof he has done so, his case must be dismissed or decided against him.
Premising this much, we pass upon the several errors assigned, or such of them as seem important.
1st. There were four boxes, at which both sides admitted that the canvass of the votes was in fact fair and the returns correct, to wit: Aberdeen, S. Aberdeen, Athens, and Darricott’s. As to these, the court correctly sustained a demurrer, though contestant claimed that as to these the friends of contestee attempted in every possible way to perpetrate frauds, which were only prevented by the vigilance of his friends. The attempt to commit frauds which it is admitted was frustrated was irrelevant and incompetent in proof.
[663]*6632d. At two other boxes, to wit: Centre Grove and Nome, it is charged that the result reached was grossly unfair and unjust, this result being produced by ballot-box stuffing and frauds of the grossest character practiced by the officers of election, and that to avoid them all the friends of contestant seceded and established elsewhere for themselves boxes which were fairly, openly, and honestly conducted, both as to the reception and the counting of the vote, though the results at such boxes were rejected by the county commissioners, while the fraudulent votes were received and counted.
As to these two boxes, it was proper to have sustained the demurrer as to the pretended outside boxes, all charges of fraud being denied. Whether the votes in the regular boxes should have been counted depends upon the proof as to the actual frauds alleged to have been committed there. Atthe Walton Store box a difficulty arose after the voting was finished as to the manner in which the counting should be carried on, the one side insisting that it should be done “ publicly,” as the law directs, and the other side contending, so'it is said, that they might count in private. Both sides sought the aid of an armed force from Aberdeen. The friends of the contestants obtained possession of the box, leaving the key with the friends of the contestee, and carried it to Aberdeen and presented it in time to the county commissioners and demanded that it should be by them counted, which was refused. They kept the box several months, presented it to the .court, and demanded that it be then opened and counted, which .was refused, though they offered to prove that it had been unopened and untampered with. This was wrong. Their act in seizing and carrying it to Aberdeen may have been uncalled for and unauthorized, but it was nevertheless the duty of the court to have heard all the evidence touching the condition of the box, and if satisfied that its contents still remained undisturbed, to open and count it. Unless court or jury were so satisfied (the burden being on the contestant) it should have been rejected; but the rights of the voters is the primary end to be considered, and their claim to have their votes counted properly cannot be defeated, if the jury shall believe that those votes [664]*664remain wholly untampered with, as was offered here to be proved. - Certainly, the whole vote of the precinct should not be defeated by ■the illegal act of those who carried off the box if that vote can now be successfully established by other proof. It is to be remarked that, discarding this vote altogether, the petition was perhaps demurrable, since, leaving it wholly out of view, petitioner did not allege that he received a majority of all the legal votes cast; but including it he did achieve such majority if it be true, as alleged by him, that he received a majority of nearly three hundred at that box. If it can now be done, the vote actually cast at the election at that box should be counted. A total inability to do this, after all proof is admitted, alone can excuse this court from passing on it. For this error, if there were no others, the judgment must ■be reversed, and this necessarily opens up the whole case.
We cannot affirm on the facts, despite these errors, both because we cannot say what harm was done by improperly sustaining the demurrers, and because the facts leave it doubtful who in truth -received a majority of the legal votes cast.
We pass to the special bills of exceptions filed, believing that a disposition of them will sufficiently indicate how the others should be disposed of.
1st. It was not competent to prove that Gathings, one of the inspectors at Muldon, made statements either before or after the election as to how he intened to, or how, in fact, he had returned the box, both because this was hearsay and because Gathings could not thus contradict his own return.
2d. It was incompetent to prove the acts and declarations of Sykes or of his supporters at the election two years before. The time was too remote, and admitting what was then said and done casts no light on the present election.
3d. The bill of exceptions with regard to the telegram sent by Evans is overruled, because from this record it is unintelligible. He who alleges error must prove it.
4th. The testimony of Wheeler Watson, tending strongly to show ■that many men were marked “voted” at Muldon who in fact had ■ not voted, were not in the precinct, and were, some of them, dead [665]*665before the election should have been admitted. "We can scarcely see how anything could be more directly competent, both-as proving fraud at the box and the participation therein of those connected with the management of the election. It is to be remarked that no provision of law authorizes the books to be written on at all. The clerks should write down the names of the voters . on lists of papers, and these should be sent up with the boxes; but as all parties here adopted the other method, we let it pass.
5th. The testimony given by Elkin and also by Stewart with reference to Walton’s Store box should have been heard. We .
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Chalmers, J.,
delivered the opinion of the court.
This is a contest under § 150 of Code of 1880 over the question [662]*662of who received the greatest number of legal votes for the office of sheriff of Monroe County on the 6th day of November, 1883.
' The petition contains the most minute as well as sweeping charges of fraud at said election upon the part of all connected with it, most of which are as specifically denied, but as to some of which demurrers only were interposed.
As the case must go back for a new trial, we shall allude only to such questions as must necessarily be decided, since it seems to us that the governing principles underlying these inquiries are always the same and are generally well known.
The cardinal rules controlling such cases are these: Where the charge is fraud, the burden is always upon the contestant to show both fraud and injury to himself in the conduct and count of the canvass, and that, in truth and in fact, he received the greatest number of legal votes. Until he has proved both of these ordinarily he can never recover. Unless he received a majority of the legal votes he has no right to bring his suit, and he can complain of no sort of irregularity or fraud save when he affirmatively shows that he was thereby damaged; the fact that he may have been so is not enough, though he may show such possibility as tending to prove that in fact he was injured, and he may show this by any proof admissible in any other inquiry as to fraud. But always his obligation is to prove that he was really elected by a plurality or majority of legal votes. Unless by the whole proof he has done so, his case must be dismissed or decided against him.
Premising this much, we pass upon the several errors assigned, or such of them as seem important.
1st. There were four boxes, at which both sides admitted that the canvass of the votes was in fact fair and the returns correct, to wit: Aberdeen, S. Aberdeen, Athens, and Darricott’s. As to these, the court correctly sustained a demurrer, though contestant claimed that as to these the friends of contestee attempted in every possible way to perpetrate frauds, which were only prevented by the vigilance of his friends. The attempt to commit frauds which it is admitted was frustrated was irrelevant and incompetent in proof.
[663]*6632d. At two other boxes, to wit: Centre Grove and Nome, it is charged that the result reached was grossly unfair and unjust, this result being produced by ballot-box stuffing and frauds of the grossest character practiced by the officers of election, and that to avoid them all the friends of contestant seceded and established elsewhere for themselves boxes which were fairly, openly, and honestly conducted, both as to the reception and the counting of the vote, though the results at such boxes were rejected by the county commissioners, while the fraudulent votes were received and counted.
As to these two boxes, it was proper to have sustained the demurrer as to the pretended outside boxes, all charges of fraud being denied. Whether the votes in the regular boxes should have been counted depends upon the proof as to the actual frauds alleged to have been committed there. Atthe Walton Store box a difficulty arose after the voting was finished as to the manner in which the counting should be carried on, the one side insisting that it should be done “ publicly,” as the law directs, and the other side contending, so'it is said, that they might count in private. Both sides sought the aid of an armed force from Aberdeen. The friends of the contestants obtained possession of the box, leaving the key with the friends of the contestee, and carried it to Aberdeen and presented it in time to the county commissioners and demanded that it should be by them counted, which was refused. They kept the box several months, presented it to the .court, and demanded that it be then opened and counted, which .was refused, though they offered to prove that it had been unopened and untampered with. This was wrong. Their act in seizing and carrying it to Aberdeen may have been uncalled for and unauthorized, but it was nevertheless the duty of the court to have heard all the evidence touching the condition of the box, and if satisfied that its contents still remained undisturbed, to open and count it. Unless court or jury were so satisfied (the burden being on the contestant) it should have been rejected; but the rights of the voters is the primary end to be considered, and their claim to have their votes counted properly cannot be defeated, if the jury shall believe that those votes [664]*664remain wholly untampered with, as was offered here to be proved. - Certainly, the whole vote of the precinct should not be defeated by ■the illegal act of those who carried off the box if that vote can now be successfully established by other proof. It is to be remarked that, discarding this vote altogether, the petition was perhaps demurrable, since, leaving it wholly out of view, petitioner did not allege that he received a majority of all the legal votes cast; but including it he did achieve such majority if it be true, as alleged by him, that he received a majority of nearly three hundred at that box. If it can now be done, the vote actually cast at the election at that box should be counted. A total inability to do this, after all proof is admitted, alone can excuse this court from passing on it. For this error, if there were no others, the judgment must ■be reversed, and this necessarily opens up the whole case.
We cannot affirm on the facts, despite these errors, both because we cannot say what harm was done by improperly sustaining the demurrers, and because the facts leave it doubtful who in truth -received a majority of the legal votes cast.
We pass to the special bills of exceptions filed, believing that a disposition of them will sufficiently indicate how the others should be disposed of.
1st. It was not competent to prove that Gathings, one of the inspectors at Muldon, made statements either before or after the election as to how he intened to, or how, in fact, he had returned the box, both because this was hearsay and because Gathings could not thus contradict his own return.
2d. It was incompetent to prove the acts and declarations of Sykes or of his supporters at the election two years before. The time was too remote, and admitting what was then said and done casts no light on the present election.
3d. The bill of exceptions with regard to the telegram sent by Evans is overruled, because from this record it is unintelligible. He who alleges error must prove it.
4th. The testimony of Wheeler Watson, tending strongly to show ■that many men were marked “voted” at Muldon who in fact had ■ not voted, were not in the precinct, and were, some of them, dead [665]*665before the election should have been admitted. "We can scarcely see how anything could be more directly competent, both-as proving fraud at the box and the participation therein of those connected with the management of the election. It is to be remarked that no provision of law authorizes the books to be written on at all. The clerks should write down the names of the voters . on lists of papers, and these should be sent up with the boxes; but as all parties here adopted the other method, we let it pass.
5th. The testimony given by Elkin and also by Stewart with reference to Walton’s Store box should have been heard. We . have already decided that this box should have been opened and counted if the vote was established, and we now declare that everything tending to throw direct light on what occurred with ■.reference to it should'have been heard, and there should have been a decision as to whether the box remained untampered with.
6th. The inspectors and clerks of election had the right to refuse to answer any question which tended to subject them to a criminal ■ prosecution, and the court was right in letting them judge of this question. This remark applies to many cases where the question arose as to various officers. Whether the contestee.himself could raise this question and make this objection where the witness did .not, and was entirely willing to answer in relation to his own returns, we do not now decide, as no authorities on the point have been produced before us. Only one witness was shown to have been willing to answer.
7th. The testimony of Nasser as to the frarxds attempted but not committed at the Aberdeen box was inadmissible.
8th. The attempt to prove by Leon that Sims, an inspector at Rome, had said that the inspectors intended to give that box to the contestee if they had to do it by stuffing the ballot-box was incompetent, because Sims’ official act could not be contradicted by hearsay. It is to be remarked that Sims is shown by the record to have been an inspector at Rome, though from other parts of it it was suspected that he was not. He was a commissioner for the whole county.
9th. It was incompetent to prove by Walton, the peace officer at Walton’s box, that the inspectors were going to stuff the [666]*666ballot-box at that place. The peace officer had nothing to do with the counting of that box. If he saw ballot-box stuffing or miscount, it could then be proven by him, otherwise not. He had no official character except to preserve the peace.
10th. It was entirely competent to sustain the returns as made by the testimony of the canvassers who made them. It is always competent to sustain official acts by the testimony of those making them.
It is believed that we have thus indicated what should have been the rulings on all the questions which must arise on another trial in the court below. We append a few words as to how this case should be tried. The petition is far more voluminous than necessary. It sets forth all the alleged errors committed. It only needed an allegation that petitioner received a majority of the legal votes cast. This it contains in the closing paragraphs. All else was proof. The petition may yet be amended as counsel may be advised. It starts with the legal presumption that the certificate has been given to the right man, and this presumption continues throughout the whole trial except where overthrown by testimony. Unless, therefore, on the whole trial the contestant affirmatively shows that he has received a majority or plurality of the legal votes cast, he can never succeed. In this case he can first rely upon the majority (if he has one) cast for him at the four undisputed boxes of Aberdeen, S. Aberdeen, Athens, and Darricott’s. He may attach the other boxes in any way he chooses, and if he does so for fraud he must affirmatively show the fraud. This he may do by any means appropriate to that issue, and he overthrows the legal presumption against him when he shows the actual participation in any unfair and fraudulent practice of those who handled the votes or returned the count at that box, and in so doing he may adopt his' own order of proof. No mere error, omission, or irregularity on the part of the returning officers can result in setting aside the certificate. Any practice which may be thought purposely to have been resorted to for influencing the result will have that effect if those who made the return knew of or sanctioned it. Speaking for myself alone, and not for the court, I think that the prima fade presumption of correctness in the certificate fails whenever it is affirmatively shown [667]*667that (as is alleged in this case) one side only participated in making out the returns and the other side was excluded from conducting the election and making the count. In such case, to speak more accurately, I think the prima fade presumption of correctness never attaches.. We all think that it fails where it is shown that there was any intentional wrong on the part of those who made the count. Whenever by any means this prima fade presumption is overthrown, either side may show what was the true state of the vote at that box, which is never to be entirely thrown out if it can by any process be discovered what that true state was; where this is wholly impossible, and in this event only, can the entire box be rejected. Going through the whole county in this way, the contestant can only have a verdict when he affirmatively shows that he had a majority in the entire county of the legal votes cast. Unless he does this, verdict must go for the contestee.
Our whole election laws contemplate fairness, justice, and a perfect ascertainment of the will of the voters. This inquiry should always be the guiding star of the investigation, and nothing save a positive requirement of the statute like that as to excluding marked ballots (illustrated in Oglesby v. Sigman, 58 Miss. 502) should be allowed to defeat it, if that result can be avoided.
We have examined without citing all the authorities relied on. They will be found in the brief of counsel.
Reversed and remanded.