author: Cox, J. Cox, J.,

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    October Term, 1885.)
    Before Judges Cox, Smith and Swing.
    State ex rel. George W. Hardacre v. Daniel J. Dalton, Clerk Common Pleas Court, and Bloom and Sanderson, Justices, Canvassers of Election.
    1. Where a canvassing board is about to do some act of a ministerial nature, which is in violatiou of the statute prescribing its duties, the court, before the result is fully declared, by mandamus may require it to proceed according to law. The fact that a mode is provided by . whioh the election may be contested does not prevent the exercise of such jurisdiction ; nor is there any other plain and adequate remedy in the ordinary course of law. By no other judicial proceeding could this relator compel this board to discharge its legal duty or furnish him a certificate of election, if upon a legal and proper canvass he is entitled thereto.
    2. The statutory provisions that the “ clerk and justices shall not receive any paper as a poll-book unless it be delivered by one of the judges of election held in such precinct, and in making the abstract they shall not decide on the validity of returns, but shall be governed by the number of votes stated on the poll-books,” are mandatory in their nature, and must be strictly complied with. Said board is not authorized to receive or canvass any paper as a poll-book unless so returned. When a return so made, is on its face substantially in accordance with law, it must be counted by them, though they may be satisfied that there was gross fraud in the election itself, or in the returns thereof as made to the clerk. And the court in a proceeding of this character can only require the board to canvass such returns so received in this manner. It can not, any more than can such board, go behind such returns. All the court can do, is to require the board to do what the law requires.

      S. When it appears to the court that the board is canvassing as returns, papers which are not such, either in form or substance according to the statutes* or not returned to the clerk by a judge of the election precinct, the court may properly direct the board to omit them from. the canvass.
    4. If the poll-book and tally-sheet show that the votes as stated in the tally-sheet are substantially more than the votes cast as given by the poll-book, no greater number of the votes on the tally-sheet should be counted than equals the number of names on the poll-book.
    5. To entitle such return to be received and canvassed by such board, it must be returned before the time fixed for the commencement of the canvass (six days), as the canvass is by fair interpretation of the law, to be made of the returns received at that time.

    6. Where a return properly signed by two of the judges and one of the clerks, constituting a majority of the election board, is filed by one of the judges of the precinct in the clerk’s office, within the time allowed by law, it is probably a substantial compliance with the provisions of the statute. At all events the court not’being clearly satisfied that it was the duty of the clerk and justices to reject it, they will not be required by the court to do so.
    Mandamus. '
   Cox, J.

The relator in this case files his petition in mandamus, setting forth that at the October election, 1885, in the county of Hamilton, he, with three others, was duly elected by a plurality of the legal votes of said county to the office of Senator, to the General Assembly. That the defendants, the canvassers, on the 19fch of October began to canvass and abstract the returns of said election made to said clerk, in order to ascertain and declare the result of said election, but they have not yet abstracted all the votes of all the precincts- in said county, nor have they as yet declared the result of said canvass and abstract, nor certified nor signed the abstract of said votes, nor deposited the same in the office of said clerk: and he avers that defendants have failed to canvass and- abstract the returns of said election according to law, and are still failing and refusing so to do. That they have canvassed and abstracted a large number of votes which do not appear on the legal returns of said election returned to said clerk, and credited the same.to the Democratic candidates. To support this allegation, a number of specific acts'are alleged on the part of the clerk and canvassers. Defendant has moved to strike out nearly all these specific averments, on the ground that they are irrelevant, immaterial, and furnish no ground for the relief asked, and this motion has been treated and argued by both parties as a demurrer to each and every specification, in order that upon the threshold of the case, the question of the jurisdiction of the court to grant the relief asked may be decided. . ■

It is claimed by defendant, that mandamus will not lie to compel the canvassing board to count' the votes and issue the certificate, as asked for, for the reason:

First, that the canvassing board in counting the votes and declaring the result, acts as a quasi judicial body, and that it is the sole judge of what are and what are not legal returns, and that its decision can not be controlled by mandamus; and, second, that the court can not proceed by mandamus to examine into the acts of the canvassing board and require them to_ count the votes and grant a certificate, because there was a plain and adequate remedy at law. That each house of the Legislature was made by the Constitution, Article 2, Section 6, the judge of the election returns and qualifications of its own members. And by Sec. 3003, Revised Statutes, the proper place to inquire into these irregularities was by contest in the Senate.

• Let us, then, inquire, first, what is the position of the canvassing board. Is it a ministerial or judicial body ?

We had supposed that this qustion was so well settled as no longer to be a subject of debate. The doctrine that canvassing boards and return judges are ministerial officers, possessing no discretionary or judicial powers, is settled in nearly, or quite, all the States. See McCrary’s Election Law, Section 84, and cases there cited.

Their duties are purely ministerial, and extend only to the casting up of the votes and awarding the certificate to the person having the highest number; they have no judicial power. McCrary, Section 81.

Our Statute, Section 2980 and following, fully sets forth t^eir duties.

On the 6th day after the election, or sooner, in case the returns are made, the clerk of the court of common pleas, taking to his assistance two justices of the peace of the county, shall proceed to open the returns made to his office and make abstracts of the votes in the following manner :

First — Upon a single sheet an abstract of the vote for Governor and other State officers.

Second — And, upon another sheet, an abstract of votes for Governor and others.

Third — And, upon another sheet, an abstract of votes for Governor, State and other officers, and Representatives and Senators to the General Assembly.

R. S. 2981. The clerk and justices shall not receive any paper as a poll-book of any precinct unless it be delivered at the cler’ks office by one of the judges of the election held in such precinct; and in making the abstract of votes, they shall not decide on the validity of the returns, but shall be governed by the number of' votes stated in the pool-books; and they shall certify and sign the abstracts, and deposit the same in the office of the clerk. By Sec. 2982, after such deposit with the clerk, he is required to make duplicate copies, under the seal of his office, inclose and seal the same, and indorse a certificate of the votes for officers named in title of Section 2980, and transmit the same by mail to the Secretary of State at Columbus. By section 2995, the clerk is required without fail to give a certificate to any elected candidate on demand.

If these statutes were not clear as to the purely ministerial character of this board, the supreme court has put it beyond the possibility of a doubt in the case of Ingerson v. Berry, 14 O. S., 322, and in the case of The State ex rel. Campbell v. Foster, Governor, 38 O. S., 603, where the court say, “ We fully concede that the duties of the defendant (the canvassing board) were ministerial in their nature.”

The second question is, can the court by mandamus examine into the acts of the canvassing board, and require them to correctly count the votes, and give a certificate to the person legally entitled thereto? By Sec. 6741~ R. S., mandamus is defined to be a ‘ writ issued in the name of the State to an inferior tribunal, a corporation, board or person; commanding the performance of an act which the law specially enjoins -as a duty resulting from an office, trust or station. Sec. 6742 : And although it may require an inferior tribunal to exercise its judgment, or to proceed to the discharge of any of its functions, it can not control judicial discretion. Sec. 6744: “ The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of law.” That these defendants are a board having duties to perform which the law specially enjoins as a duty resulting from an office, trust or station, we think is clear, and the supreme court has said in the case of Ingerson v. Berry, 14 O., 322, that they saw “ nothing in-the intrinsic nature of the duty, nor in the character of the office or station, to prevent the enforcement of its performance by mandamus in a proper case.” And so in the case of the State ex rel. Campbell v. Foster, in 38 O. S., 602, the supreme court, without in any way questioning this right so to do, proceeded to hear a case in mandamus against the Governor and Secretary of State, as the State Canvassing Board, on the vote for member of congress.

But it is claimed by defendant that mandamus will not lie, because there is a plain and adequate remedy at law afforded to relators by a contest before the Senate. To determine whether relator has a remedy at law by contest, let us see what he demands by his < petition. It is simply that defendants shall proceed to count the legal returns, and award a certificate to him if it be 'found on such count that he has a plurality of votes. This is not an application “ to contest the right of a person declared duly elected to the office of senator,” for which section 3003, revised statutes, provides. It differs widely from a contest. If relator has received a majority or plurality of votes, it is his right to have that declared and certified. It is the muniment of title to the office which he seeks, and not the office itself. It is made by section 24, R. S., the prima facie evidence of his right to a seat in the Senate, and, until it is awarded to him or some one else, no contest can be instituted in that body. The awarding of that certificate, is preliminary to all, or any proceeding in the Senate. The Senate, on a contest, can not award it to him. Clark v. McKean, 7th Bush., 523. But the Senate may award the office to him on proper proof, whether he has, or has not this certificate. If relator is entitled to the certificate, it should be given to him by these defendants, for it has a value of great importance to .him, as giving him a key to the door of the Senate, éntitling him prima facie to the right to a seat, and if that right be contested then the burden of proof is upon contestant.'

There is no adequate remedy, nor indeed any remedy at law, by which the relator can obtain this certificate (if the canvassers refuse to declare in his favor) unless it be the writ of mandamus so ordering. It in nowise interferes with the action of the Senate in determining, either by a contest or otherwise, the election returns and qualifications of its members. There is, in fact, no Senate to organize until some persons, having certificates as the result of an election by the people, present themselves to organize that body. And after its organization by those holding certificates of election, the Senate may nevertheless go behind the election return and certificate, and determine that the holder was not elected, or even that, though elected,- he was not qualified to hold a seat in that body.

We hold, therefore, that mandamus is a proper remedy to be resorted to, to compel the defendants to properly canvass, abstract and certify the returns of the election at which relator was a candidate, and if he has received a majority or plurality of votes, to so certify, and give him a certificate on demand. The doctrine, we think, is not controverted by any decision of the supreme court of this State, but is in accordance with the principle announced by that court in the following well considered cases: Ingerson v. Berry, 14 O. S., 322; State ex rel. Goss v. Randall, 35 O. S., 64; State ex rel. Campbell v. Foster (Governor) et al., 38 O. S., 603.

This latter case is very suggestive. It was an application by James E. Campbell, who claimed to have been elected a member of congress from the third district, for the allowance of a writ of mandamus against Governor Foster and the Secretary of the State, who are by law designated as the canvassing board, to compel them not to count certain votes in the returns from Clermont county given to H. L. Morey, and to compel them to award the certificate to him. The supreme court did not refuse to take jurisdiction on the ground that each house of congress was, by the constitution of the United States, the judge of the election, return and qualification of its members, nor for the reason that the law provided an ample remedy by contest in the House' of Representatives, but without any doubt, hinted or expressed against their jurisdiction, proceeded at once to hear and dispose of the question as one of which they had full jurisdiction.

But the motion in this case goes further than to the jurisdiction of the court. It is to strike from the petition a large number of the averments, on the ground that they are immaterial, irrelevant, and furnish no ground for the relief sought.

Let us examine what these averments are, which are denominated immaterial, irrelevant, and as not furnishing ground for relief.

They are in brief as follows: It is charged that defendants, in canvassing the votes, are canvassing, abstracting and crediting to Democratic candidates votes from papers which are not the legal returns from precincts described, and which they have no authority by law to canvass as the legal returnsthat in precinct A, of the fourth ward, the papers purporting to be returns are forged, altered, and spurious, and do not represent the votes cast in said preciniet, and said facts are evidenced on the papers; that the paper purporting to be a poll-book shows 654 names as having voted, whereas the tally shows that 996 votes were cast, and that defendants have canvassed and abstracted from said papers 996 votes as to the office of senator, for which relator was a candidate, of which they have given 926 votes to his oppbnents; that in precinct F, of the ninth ward they have canvassed and abstracted and credited to the Democratic candidates 191 votes and 45 votes to the Republican candidates, from papers which are not the returns of votes cast at said precinct; that the paper purporting to be a tally-sheet contained no tallies, and no statement of votes for any candidate cast at said election, nor was it signed' by any of the judges or clerks of said election.

As to precinct E, of eighteenth ward, defendants have canvassed and abstracted as the votes cast at said election, and credited 215 votes for the Democratic candidates, and 117 votes . for the Republican candidates from papers, which are not the lawful returns of said election; that the papers from which said abstract was made were not signed by the minority judge of the election, because of frauds at said election, and because the papers did not contain the true returns; that said papers were not returned to said clerk and delivered to him by one of the judges of said election in pursuance of law; that the vote cast at said election was canvassed on the night thereof by only two of the judges of said election, and when so canvassed or 'counted, the poll-books an'd tally-sheets were not delivered to the city clerk and county clerk as required by law, but the same, after having been signed by the two judges and two clerks, were placed by them inside the ballot-box, said poll-books and tally-sheets being without cover and not under seal, containing the ballots cast at said election, and which said box, having had the hinges broken off the lid thereof, was thereupon tied with a rope and delivered to an officer of police, who conveyed the said box containing said poll books and tally-sheets to the Central Police Station of. Cincinnati; and said judges and clerks of said precinct, when they had thus signed said poll-books and tally-sheets and deposited the same in said box as aforesaid, thereupon adjourned without day, and without further order as to the disposition of said papers and returns. On the 19th day of October, 1885, one of the judges took the papers from the box and kept possession of the same, uncovered and unsealed, from that day until the 22d of Octobef, when he placed the same under cover and sealed and delivered it to the county clerk.

As to precinct D of the nineteenth ward, the allegations of the relator are, that defendants have canvassed and credited the Democratic candidates 283 votes and fifty-two to the Republican candidates, from papers which are not the lawful returns of said election; that on the night of the election, at the closing of the polls, the judges and clerks of said precinct refused to proceed with the counting of the ballots cast at said voting place, and allowed the box containing said ballots to remain unopened, and instead of proceeding with the count of ballots cast, they abandoned the box and left it in the custody of parties unknown to the relator; that the following night, twenty-eight or twenty-nine hours after the closing of the polls, the judges of said precinct returned to the voting place, and undertook to count the ballots cast at said election; that the box, which was then at the voting place of said precinct, was opened, and the ballots therein counted'by said judges and clerks, and the return made to said county clerk, is the return of the vote and ballots then found in said ballot-box ; but this relator denies that said ballot-box is the same that was used to receive the votes of electors on the day of said election in said precinct, and denies that the said ballot-box was in the same condition in which it was left at the closing of said election polls, and further charges that if the box was the same box which was used at said precinct the preceding .day to receive the ballots cast, that the same had been tampered with, .and a large number of votes placed therein since the closing of the polls on the night of election; that the said tally-sheets made at the time aforesaid and returned to said clerk show forty-three votes in excess of*the number of votes cast at said election by the legal electors .thereof, as shown by the poll-hook of said precinct so returned to said clerk, which said excess of votes were fraudulently and unlawfully placed in said box, whilst the same was out of the possession of the judges, and in the custody of persons unauthorized by law to have the same, and it is impossible to ascertain and determine the votes actually cast by the legal electors for the several candidates for the office of senator.

This truly formidable array of charges of official delinquency and criminal disregard of law, is by the pleading of defendants, for the purposes of this motion, admitted to be true, and the only answer is that they are irrelevant and immaterial, and furnish no ground for relief. We can not conceive them to be such — if they be true, relief should be granted against them, if in the power of the court. The duties of the defendants are plainly prescribed by law, and if these specifications set forth wherein they are violating these duties, they should not be stricken out.

What are those duties ? Section 2980, R. S., provides that on the sixth day after the election, or sooner, in case the returns are made, the clerk of the court of common pleas, taking to his assistance two justices of the peace of the county, shall proceed to open the several returns made to his office, and make abstracts of the vote in the following manner, etc. Section 2981 — The clerk and justices shall not receive any paper as a poll-book of any precinct, unless it be delivered at the clerk’s office by one of the judges of the election held in such precinct; and in making the abstract of votes, they shall not decide on the validiv of the' returns, but shall be governed by the number of votes stated in the poll-books; and shall certify and sign the abstract, and deposit the same in .■ the office of the clerk.”

What are these returns of election which they are thus to canvass and certify? Not, certainly, any paper purporting to be a return which may have been left, sealed or unsealed, in the clerk’s office, by a judge of election or any other person. But their character is fixed precisely by the statute, and the very form given. It is a statement by the officers of an election to the clerk of the court of common pleas', in accordance with law, of the number and names of persons who have voted in a particular precinct, with the number of votes cast for each of the candidates for the respective offices. It consists of a poll-book and a tally-sheet.

The poll-book contains the names of all .the persons who voted at the election, and' these names must be counted and the number set down at the foot, and certified to by the signatures of the judges and clerks in the manner provided by the statute. The tally-sheet should contain the names of the person voted for, and for what office, and the number of votes given for each candidate; and this,, too, must be added up, and certified to and signed by the judges and clerks. And the number of persons voting should correspond to the number of votes cast. The judges, by section 2961, shall, after so canvassing-the votes, and before they disperse, put under cover one of the poll-books, seal the same, and direct it to 'the clerk of the court of common pleas, and one of the judges, to be selected by the others, shall convey the same to the clerk, at his office, within three days from the day of election.

As to some of these precincts, nearly all of these plain, easily comprehended rules as to a proper return of an election are charged to have been violated, and while the statute provides that no election shall be set aside for w-ant of form in a poll-book, provided it contain the substance, these charges go not only to the want of form, but to want of nearly every substantial thing going to make a correct legal return.

Now, although the performance of the dutiesjof the canvassers is ministerial, yet, as the supreme court says in 38 O. S., 604, State ex rel. v. Foster et al., “ the performance of ministerial duties requires the exercise of intelligence, sense and judgment. Ministerial duties must be performed correctly, and the fact that a ministerial officer performed his duty according to his judgment is of no avail if his duties are not correctly performed.” “A duty not correctly performed is not performed at all.”

As a result from what has been said, we state the general principles decided by us as follows :

First — That where a canvassing board is about to do some act of a ministerial nature, which is in violation of statutes prescribing its duties, the court, before the result is fully de-, dared, may, by a writ of mandamus, require it to proceed according to law. And the fact that a mode is prescribed by T^hich the election may be contested-, does not prevent the exercise of such jurisdiction. Nor is there any other “ plain and adequate remedy in the ordinary course of the law ” for the evil complained of. By no other judicial proceeding could the relator compel this board of canvassers to discharge its legal duty, or to furnish to him a certificate of his election, if on a legal and proper canvass he is entitled to it.

Second — That under the provisions of section'2981, revised statutes, “ the clerk and justices shall not receive any paper or a poll-book of any precinct unless it be delivered at the clerk’s office by one of the judges of election held in such precinct, and in making the abstract of the votes, they shall not decide on the validity of the returns, but shall be governed by the number of votes stated in the poll-book.” So far as regards these provisions, we are of the opinion that they'are mandatory in 'their nature and must be strictly complied with, and that the board is not authorized to receive or canvass any paper or poll-book unless so received.- And further, that when a return is so made, .on its face substantially in accordance with the law, it must be counted by them, though they may be satisfied that there was gross fraud in the election itself, or on the returns thereof as made to the clerk.” [See dissenting opinion of Judge Cox.] And the court in a proceeding of this character can only require the board to canvass such returns so received in this manner, and that it can not any more than can such board, go behind such returns. All we can do is to require it to do what the law requires.

Third — That when it appears to the court that such board is canvassing as the return papers which are not such, being neither in form nor substance such as the statute provides for,, and not having been returned to the deck’s office by a judge of the election precinct, such action is in direct violation of the law and of the duty of the board, and the court may properly direct the board to omit it from the canvass.

Fourth — That if the poll-book and tally-sheet returned from any particular precinct, on their face show that the votes as stated in the tally-sheet aré substantially more in number than the number of votes cast, as given by the poll-book, that (at least) no greater number of votes on the tally-sheet should he counted than equals the number of votes on the poll-book. But inasmuch as great doubt exists as to what the law requires of the board in such a case, that is, whether the whole vote or return should be rejected, or if canvassed, in what manner it should be done, we do- not now finally dispose of this question, but reserve it for further consideration.

Fifth — Section 2961 provides that after one of the poll-books is sealed and directed to the clerk of the court, one of the judges shall convey the same.to the clerk at his office within three days from the day of the election. And section 2980 provides that “ on the sixth day after the election, or sooner in case the returns are made, the clerk of the court of common pleas, taking to his*>assistance two justices of the peace of the county, shall proceed to open the several returns made to his office.” Whether a return made by a judge of the election after the three days fixed by law in which it shall be so returned, and before the time at which the canvass by the terms of the statute is to commence, shall be canvassed by them, is not presented by this petition and motion, and, therefore, it is unnecessary to decide it. But to entitle such return to be received and canvassed by such board; it must be returned before the time fixed for the commencement of the canvass, as the same is, by a fair interpretation of the law, to be made of the returns received at that time.

Sixth — That when a return, properly signed by two- of the judges and one of the clerks of an election precinct (they constituting a majority of the said election board), is filed by one of the judges of said precinct in the office of the clerk, within the time limited by law, this is probably a substantial compliance with the provisions of the statute. At all events, the court not being clearly satisfied that it was the duty of the clerk and justices to reject the returns so made and signed, they will not be required by the court to do so. State ex rel. Goss v. Randall, 35 Ohio St., 64.

In the light of these holdings of the court, the motion of the defendants to strike from the amended petition are disposed of as follows:

First — As to precinct A, fourth ward. This part of the motion is overruled on the ground that the allegations are that the poll-book from this precinct contained the names of but 654 persons, and that the board had canvassed 996 votes for the senate from that precinct, of which 926 were credited to all of the Democratic senators but John Brashears, who was credited with 926 votes when he had but 726 tallies; thus, according to the allegation of the petition, giving to all of the Democratic senators more votes than were cast at said elec-' tion, as shown by the poll-book.

Second — As to precinct F, ninth ward, the allegations sought to be stricken out are substantially that defendants have canvássed, abstracted and credited to relator 45 votes, and to the opposing candidates 191, from papers not the returns of the votes cast at said precinct at said election; that the paper purporting to be a tally-sheet contained no statement of votes cast for any candidate at said election, nor was the same signed by any of the judges or clerks of said election; and that said defendants made said canvass and abstract as aforesaid, without having any tally-sheet returned from said precinct, or any statement of votes cast at said election, as required by law. Clearlj', under the ruling we have made, if such action has been had by the board, it was illegal, and the court can require it to be corrected, and the motion as to this should.be overruled.

Third — As to precinct E, eighteenth ward. The allegations as to this precinct, which the defendants ask to have stricken out, are, that the board credited 117 votes from said precinct to the relator and 213 votes to the opposing candidates. It is also alleged that many irregularities occurred in the counting of such votes by the judges; that the returns were placed by them in the ballot-box unsealed, and that the judges then adjourned, without any order as to the disposition of the returns ; that on October 19, one of the judges took said papers from the box, placed the same hnder cover and seal, and delivered them to the clerk on the 22d of October.

Under the view we have taken of the law on this matter, many of the allegations of this part of the amended petition are in our judgment, irrelevant, and can not be inquired into, and had the motion been confined to such points it would have been sustained. But as the allegation as to the time of the delivery of such returns to the clerk are material and relevant, and as the motion goes to the whole, it will also be overruled.

Fourth — As to precinct D, of the nineteenth ward — The allegations of this part of the petition are that the defendants canvassed fifty-two votes therefrom to the relator and 233 votes to the opposing candidates. It further charges that there were great irregularities in the counting of said votes, which, in our judgment, can not be considered; but as it avers that the board counted for such officers from the tally-sheets forty-three votes in excess of the number of votes as shown by the poll-book, the motion as to this is overruled.

Fifth — As to the precinct F, nineteenth ward — The amended petition alleges that in this ward the minority judge and clerk refused to sign the papers returned because they were not the true and complete returns of the votes cast at said election; and it further alleges that before the counting thereof, 103 votes had been abstracted from the box, and that there were many other irregular and illegal acts committed by the two judges. On the ground stated hitherto, we think no relief, can be granted by the court in this proceeding on these allegations, and the motion as to this is sustained, but that these are questions to be settled on a contest of the election, should one be had.

Sixth — The motion seeks to have stricken from the petition all the allegations contained after line 204. These allegations are as to the counting by the defendants, in each of the precincts named, more votes from the tally-sheets than were' shown by the poll-books, and for the reasons before stated this motion is overruled.

Smith and Swing J. J. concurred.

Cox, J.,

dissenting from a portion of the decision, said: “ The majority of the court hold, that the canvassing board can not reject the returns, though they may be satisfied that there was gross fraud on the returns as made to the clerk.” From this portion of the decision I dissent. It is charged in the petition that certain papers purporting to be returns are altered, forged and spurious, and do not represent the votes cast at said election, and that said facts are evidenced by .said papers.

If this be so, these are not legal returns, and it would be the duty of the canvassers to reject and not count the votes on such a paper.

It is claimed that to do this would be going behind the returns, and deciding on the validity of the returns, which is interdicted by statute. But I do not so conceive it. Examining a return to see if it be a legal return, having the substance of a genuine return, is not going behind the return, but is simply examining into a return and rejecting a false return for a true one.

If a paper is presented as a return, and there is a- question, as to whether it is a return or not, they must decide that question from what appears npon the face of the paper itself. [McCrary on. Elections, section 82.] They may judge whether the returns are in due form [25 Ill., 328], and they must act correctly. Not to act correctly is not to perform duty. [38 O. S.] But. it is said they can not decide as to the validity of the returns.” What is the meaning of the validity of the re-" turns ? It certainly can not be that they shall canvass any paper presented to them and certify it as a return.'

In commenting on this section of the statute, the supreme court, in Phelps v. Schroeder, [26 O. S., 554], say: “The justices and clerk are not clothed with the, power of detérmining the question of illegality or fraud in the election. Where, as in this instance, the poll-book' on its face was in form and substance regular, the only duty was “to abstract and certify the vote.”

The converse of this last proposition must be true, that where the poll-book on its face was not in form and substance regular, it was their duty not to count.

The true meaning of the statute in the light of this decision is that the cauvassers can not go back of the returns to ascertain whether the election was illegal or not; but they can ,and must decide whether the paper purporting to be a return, is the genuine and legal return of the officers of election.

An analogous case was decided in 65 Missouri. State ex rel. Metcalf v. Garsche, page 480. It was held that in a proceeding by mandamus, to compel a board of canvassers to count a- vote as returned by the officers of election, when it appears that the alteration has been made in the return of the vote, but the canvassers do not know whether it was made before or after the return was delivered to them by the officers of the election, the circuit court will inquire and determine what the return as delivered actually was, and will compel them to-make the count accordingly. In this case there had been an alteration in the figures of the return, and the canvassers answered that they did not know whether the figure had been altered before or after the return came to them, and so counted it as they found it. The circuit court, on mandamus, held that the court could take up the investigation and make the inquiry for them; and having ascertained for them the right, would issue the writ against them; and the court said, as the canvassers had no judicial eye, the court, through the medium of testimony taken for that purpose, will enable them to see, and advise them what to do; and the court found that the return had been altered after it came into the hands of the canvassers, and directed that they should count the true return and reject the forged one. This decision was sustained by the* supreme court.

Thomas McDougall, Drausin Wulsin, W. M. Bateman and E. F. Noyes, for relators.

John F. Follett and Isaac M. Jordan, contra.

I can not see that there is any difference in the forgery or alteration of a return before or after it came into the hand of the clerk. Suppose a judge of election, intrusted by his fellows with the carrying of the true returns to the clerk, or any other person, should forge a false one and deposit it with the' clerk as a substitute for the true. Can there be any reason why this should be counted by the canvassers, when, if the same person should get possession of the true one, after it got into the possession of the clerk, and alter it, the court would reject it ? There is no safe rule except to require the canvassers to see that the true return is before them when they meet for the canvass; but if, upon its face, it bears the evidence of forgery or alteration, to reject it; and if they do not, or are unable, or will not see the forgery, then the court should lend the judicial eye to detect the forgery, and, if detected, order the canvassers to reject it.


source: Caselaw Access Project

license: Public Domain

text:
    (Seventh Circuit — Lake County, O., Circuit Court
    Oct. Term, 1885.)
    Befobe Judges Laubib, Fbazieb and Woodbuby.
    Hulett et al. v. Fairbanks et al.

      Conversion — Measure of Damages.

   N. held the title to certain valuable pine timber lands by virtue of a decree of court. During his supposed ownership, he cut, removed and sold the timber growing on said lands. Afterward, the judgment which gave him his title, was reversed, and it was held, that his title was fraudulent and void, and he was ordered to execute a deed conveying the lands to H., the rightful owner. On an accounting to determine the amount due H., for the conversion of the timber growing on said lands: Held, that the measure of damages, is the value of the timber on the land at the time it was severed from the freehold, and converted by N.


author: Frazier, J.

text:
    (Seventh Circuit — Lake County, O., Circuit Court
    Oct. Term, 1885.)
    Before Judges Laubie, Erazier and Woodbury.
    Elizabeth Rooker v. Chas. O. Demerit.
    While it is true that a tenant can not dispute his landlord’s title, yet he may show that his landlord’s title has lapsed, or that he (the landlord) has abandoned the lease.
    Error to the Court of Common Pleas of Lake County.

      Judge Bosworth, for plaintiff in error.-

      Alvord & Alvord, for defendant in error.
   Frazier, J.

This is an action of forcible detention. The plaintiff, Rooker, recovered a judgment of restitution and for costs before the magistrate, which judgment was reversed by the common pleas court, and a judgment for costs was rendered in favor of the defendant. To reverse the judgment of the common pleas, the original plaintiff, who is now the plaintiff, in error, comes into this court with a petition in error.

It appears that the court below found that there was error in the proceedings in the justice’s court in this, to-wit: That said justice erred in excluding evidence offered by, the defendant on the trial.

After the plaintiff had rested her case, the defendant offered to prove that he had attorned to another and that the plaintiff had assented thereto; that the plaintiff had abandoned the lease; that she had said in a.previous conversation, that she would “have nothing more to do with it”;, that the plaintiff had no title to the premises; that he [defendant) did not at the beginning of his last term go into possession under a lease from plaintiff, but by virtue of a lease from the person who did in fact hold the title to the premises.

All this was excluded.

. It is argued that a tenant can not dispute his landlord’s title, and this is good law. But is there not a manifest distinction between showing that the landlord’s title has lapsed, and disputing his title? Or in showing that he has abandoned his lease? Or that he in fact has no title?

We think that the evidence was. competent, and that it does not fall within the rule so strenuously contended for by counsel. . The judgment of the common pleas is therefore affirmed.


author: Woodbury, J.

text:
    (Seventh Circuit — Belmont Co., O., Circuit Court
    June Term, 1885.)
    Befobe Judges Laubie, Frazier and Woodbuby.
    The State ex rel. Alexander E. Dent v. Isaac Halloway.
    Section 3245, R. S., does not authorize stockholders of a private corporation to cumulate their votes in the election of directors or officers of the corporation.
    Quo Warranto.
    J. H. Collins, counsel for defendant, claims:
    It is a fundamental principle lying at the foundation of all organizations such as this, that the majority of shares shall control it, and that each share entitles the owner to one vote for each officer to be elected, whether director or other officer. This is the common law of corporations. Redfield on Railways, vol. 1, pages 71 to 76, chapter 4, section 3; Blackstone’s Com., 468-471; Kent’s Com., 293, 294. .
    What is known as cumulative voting, or minority representation, is not known to the common law, and was not known at the time of the adoption of the preseht constitution.
    See opinion in case of State ex rel. v. Constantine, supreme court a'dvanee sheets, page 437.
    To construe this section as claimed by relator, makes it in derogation of the common law, while the construction for which we contend, makes it agree with the common law, and the latter must be adopted, because otherwise it must be strictly construed, and if this construction is applied it wi-11 fall short of authorizing the voting in the manner here insisted on.
    Section 3245 was originally a part of section 9 of the act of 1852, (S. & C., 276), and was originally a part óf the act for the organization of railroad companies. In the original section the provision was: “ Each share should entitle the owner to one vote.” In the revision, the provision is: “ Each share shall entitle the owner to as many votes as there are directors to be elected.”
    The claim'is, that this section in the revision means, that the owner of each share may cast his votes one for each director, or as many votes for one director as there are directors to be elected — that is, if there are seven directors to be elected, the owner of one share may cast' seven votes for one director.

      If this is what the revision commissioners meant, I think they should' have said so. ' They were lawyers and understood the meaning of words and the use of language, and could very easily have expressed their meaning if this is what they meant.
    Under the original statute the question would naturally arise:
    Had the owner of one share the right to cast one vote for one director, or one vote for each director to be elected ? If it meant the latter, it follows that under the revised section the owner of one share will be entitled to as many votes for each director as there are directors to be elected.
    When we consider that at common law, the owner of one share was entitled to one vote for each director, and that surely had always been the custom in this state, and such was the meaning of the original section, and that the revision commissioners were not authorized to change the meaning of the section, in connection with the presumption that they did not intend to change it, I think it should appear entirely clear that they meant, and the legislature meant to provide for cumulative voting before the construction here claimed is adopted.
    But there is another view still more fatal to the claim here made, and that is that the section makes provision only for the first election after the corporation is formed, and not for subsequent annual elections.
    Section 3244 provides, that the subscribers to the articles of incorporation shall give notice to the stockholders of the time and place of holding the first election of directors.
    Section 3245 provides, t|jat at the time and place appointed by the incorporates, the stockholders shall meet and elect directors by ballot, and directs how the election shall be conducted, and includes the provision quoted herein, and provides that the incorporators shall be inspectors of the election, and shall certify who is elected, all of which necessarily applies to the first*election.
    The incorporators can, of course, only appoint one election, and they can be inspectors and certify who is elected only at the first election.

      The sentence, “ each share shall entitle the owner to as many votes as there are directors to be elected, ” by the express terms of the,section in which it is found, applies to the first election, and in the present case the election was not the first, but was an annual election, held by judges appointed by the old board of directors.
   Woodbury, J.

This case involves the construction of section 3245 of the Revised Statutes, or that part of it which provides, that each share shall entitle the. owner to as many votes as there are directors to be elected, and a plurality of votes shall be necessary for a choice.”

The relator claims that this section does authorize cumulative voting, while the respondent claims that it does not.

The original section 1 (S. & C., 276, Sec. 26) provided that each share shall entitle the owner to one vote, and a plurality of votes shall be necessary for a choice.”

This section, up to the time of the revision, had uniformly been construed since its passage to mean, that each shareholder was entitled to as many votes as he held shares of stock, for each director to be elected; or, in other words, each share entitled the owner to one vote for each director to be elected, or one vote on each resolution proposed.

The revised section 3245, provides, “ each share shall entitle the owner to as many votes as there are directors to be elected, and a plurality of votes shall be necessary for a choice.”

The supreme court, in 37 O. S., 640, hold, that “it is a well settled principle that where a statute has undergone revision, it should be construed as before, unless the new act plainly requires a change in the construction.”

“ Application has been given to this principle in cases where the change was very marked, 35 O. S., 174, Williams v. The State. And it is also a well settled rule that, it being of the very essence of a law that it be uniform and unchangeable, whatever was the meaning of a statute when first enacted, should be its meaning through all future time.”

In State ex rel. v. Commissioners of Shelby County, 36 O. S., 326 the supreme court hold: “ Where an act of the legislature, or several acts in pari materia, have undergone revision, the same construction will prevail as- before revision, unless the language of the new act plainly requires a change of construction, to conform to the manifest intent of the legislature.”

And in Allen v Russell, 39 O. S., 337, the court hold: “ But where all the general statutes of .a state, or all on a particular subject, are revised and .consolidated, there is a strong presumption that the same construction which the statute received, or, if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form, although the language may have been changed,” citing numerous authorities, and adds, of course, if it is clear from the words that a change in substance was intended, the statute must be enforced in accordance with its changed form.”

No such thing as “minority representation,” or “cumulative voting,” was known in the policy of this State at the time of the revision, and if the legislature had intended to work such a radical change in the method of conducting corporate elections, as to provide for, and authorize “ cumulative voting ” it would have used language showing plainly that intention, and requiring such construction.

There is nothing in section 3245, R. S., requiring any different construction than was placed upon section 26 1 S. & C., 276. And certainly it cannot be said that there is anything in the language used in the revised statutes, which makes it “ clear ” that the legislature intended to authorize “ cumulative voting,” or, to change the old section, more than to make it conform, in language, with the construction that had'been uniformly placed upon it in the State.

Wherever “ cumulative voting ” has been authorized, it has beeff done in language showing plainly such intent. As in the constitution of Pennsylvania, section 4, article 16, it is provided : “ In all elections for directors or managers of a corporation, each member or stockholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer.” And in the constitution of Illinois, section 7, article 4, it is provided: “ In all elections for representative aforesaid, each qualified voter may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same, or equal parts thereof, among the candidates, as he shall see fit, and the candidates highest in votes shall be declared elected.”

L. Danford, for plaintiff.

J. 11. Collins, for defendant.

This change in the language of the statute having been made in the revision of the statutes by the commission, it is not to be presumed that the commission intended to change the section more than to make its reading conform with the well settled construction that had been placed upon the old section, for they had no such authority.

“ The statute providing for that revision (72 Ohio L., 87), gave the commission power only ” “ to revise and consolidate the general statute laws of the state, which may be in force at the time such commission shall make their report.” 43 O. S. City of Warren v. Davis.

We therefore hold, that section 3245 R. S.,does not authorize stockholders in a corporation to cumulate there votes in the election of directors.