(Duties of return judges or canvassers.)

that an information in the nature of a quo warranto would lie against one intruding into the office of sheriff, in consequence of an unlawful decision of the county-board of canvassers, the duties of the board being ministerial, and not judicial. It is true, that by force of existing law, the officer holds until his successor is elected and qualified; but if, by unlawfully obtaining his certificate and commission, he prevents the person legally entitled thereto from qualifying, he will not be allowed to set this up in defence, and reap a benefit from his own wrong.

The question then arises, by what authority did the county-clerk, acting as a mere canvassing officer, assume to determine the legality of the vote in the Jasper election district? Although the vote might have been informally certified, that would make no difference; officers should look at substance, and not at form. A literal compliance with the prescribed forms is not required in any case, if the spirit of the law be not violated; and the governing principle in all cases is, to clearly ascertain the intention of the voters; if a defect existed in the certificate, that might be supplied at any time, by the judges and clerks, whose duty it was to make the same before the vote was counted.

The statute requires that, within eight days after the close of each election, the clerk of each county court shall take to his assistance two justices of the peace of his county, or two justices of the county court, and examine and cast up the votes given to each candidate, and give to those having the highest number of votes a certificate of election. Gen. Stat. 1865, p. 63, § 25. Here is no discretion given, no power to pass upon and adjudge whether votes are legal or illegal, but the simple ministerial duty to cast up, and award the certificate to the person having the highest number of votes; if the clerk has sufficient mathematical ability to correctly count up the returns, he is perfectly qualified for his office, for that is the only duty devolved upon him by law. To determine upon the

(Duties of return judges or canvassers.)

legality of votes is a judicial proceeding before a court competent to hear and adjudicate, where the parties interested can appear and present their respective claims. To admit a mere ministerial officer arbitrarily to reject returns, at his mere caprice or pleasure, is to infringe or destroy the rights of parties, without notice or opportunity to be heard; a thing which the law abhors and prohibits. Admit the power, and there will be no uniformity; one canvassing officer will reject for one thing, and another for a different matter; and no man can tell whether he is legally elected to an office, until he consults the notions of a canvasser. The exercise of such a power is subversive of the rights of the citizen, and dangerous and fatal to the elective franchise.

But it is enough to say, that the claim is utterly unauthorized. The law has provided tribunals with ample power to hear and determine all questions pertaining to elections, and pass upon the validity of votes, where the parties interested can appear, and have a fair trial upon pleadings and proof. When a ministerial officer leaves his proper sphere, and attempts to exercise judicial functions, he is exceeding the limits of the law, and guilty of usurpation; in this case, it would have been more decent and seemly for the clerk to have confined himself to the discharge of the duties pointed out by law, and not to have attempted the exercise of powers which were never entrusted to him. I have examined, with a good deal of research, the authorities, and have not been able to find a single one that held otherwise, than that the canvasser acted ministerially, but they are unanimous and decisive, in declaring him a ministerial officer, and nothing more.

The record abundantly shows that the defendant has no legal right to the office which he is now holding, and judgment of ouster will, therefore, be entered against him, with costs.

Judgment for the state.

(Duties of return judges or canvassers.)

The point ruled in the principal case, that canvassers or return judges are mere ministerial officers, without any judicial power, and that their duty consists in simply casting up the votes returned to them by the election officers, provided the certificates be regular on their face and presented in proper time, has generally been received as law in the state courts. Thus, in New York, in the case of People v. Van Slyck, 4 Cow. 297, 323, it was said by Woodworth, J., that “the duties of the canvassers are ministerial; they are required by the act, to attend at the clerk's office, and calculate and ascertain the whole number of votes given at any election, and certify the same to be a true canvass; this is not a judicial act, but merely ministerial; they have no power to controvert the votes of the electors." So, in Ex parte Heath, 3 Hill 47, Cowen, J., says, "the returns of election inspectors are ministerial, not judicial acts; their character is shown by the freedom with which they are scrutinized in proceedings by mandamus, or information in nature of a quo warranto." In Morgan v. Quackenbush, 22 Barb. 77, it is said by Harris, J., that "they are not at liberty to receive evidence of anything outside of the returns themselves; their duty consists in a simple matter of arithmetic; they are to bring together the returns made by the inspectors of the several election districts, and ascertain, by computation, the aggregate number of votes given in the whole city for each person, for each office, and then declare the result by their certificate.”

The same point was ruled in Pennsylvania, in Thompson v. Ewing, 1 Brewst. 77, where it was said by Ludlow, J., that return judges have no power to inquire into a question of fraud, for that would constitute them judges of a contested election; their duty is simply to open and enumerate the returns, cast up the vote, and certify the result according to law. And in New Jersey, in State v. The Governor, 1 Dutch. 348–9, Green, C. J., said, "the board of county-canvassers clearly erred in the grounds of their determination; they had no authority to examine the regularity of the proceedings of the township boards, or to look behind the official returns made by them; all the evidence produced before them, outside of the official returns, made or prescribed by law, was unauthorized and illegal; it could constitute no legitimate basis for determination."

In Indiana, it has been determined, that the duties of the board of canvassers and of the clerk, in making out the statement of the votes given, the persons elected, &c., are ministerial; they are not to consider

(Duties of return judges or canvassers.)

any question relative to the validity of the election, but to cast up the votes given for each person, from the proper election documents, and to declare the person who, upon the face of those documents, appears to have received the highest number of votes given, duly elected to the office voted for. Brower v. O'Brien, 2 Ind. 423; State v. Jones, 19 Ind. 356. In Illinois, it is said, that "these officers are clothed with no discretionary power; they are to open 'the said returns,' and make abstracts of the votes as they appear in said returns, and the clerk is to deliver a certificate of election to each of the persons having the highest number of votes, as manifested by the said returns;' they are not allowed to reject any returns, nor to decide upon their validity, if, on their face, they are made in compliance with the law, and in the form prescribed by the statute; if the returns show the whole number of votes given, the names of the persons voted for, and the number of votes given for each, they contain everything that is material, and if duly authenticated, should be received as valid returns." People v. Hilliard, 29 Ill. 422; People v. Kilduff, 15 Ill. 500. In People v. Head, 25 Ill. 328, the court say, "they may probably judge whether the returns are in due form, but after that, they can only compute the votes cast for the several candidates and declare the result."

The same point was determined in Iowa, in Dishon v. Smith, 10 Iowa 212; State v. Cavers, 22 Iowa 343: and in Wisconsin, in Attorney-General v. Barstow, 4 Wis. 749, where it is said, that the canvassers "are to add up and ascertain, by calculation, the number of votes given for any office; they have no discretion to hear and take proof, as to frauds, even if morally certain that monstrous frauds have been perpetrated." And see Carpenter v. Ely, Ibid. 420 (ante 258). The law is the same in Michigan, People v. Van Cleve, 1 Mich. 362: in Alabama, Thompson v. Circuit Judge of Mobile, 9 Ala. 338: in Missouri, Mayo v. Freeland, 10 Mo. 629; State v. Harrison, 38 Mo. 540; State v. Rodman, 43 Mo. 256: in Maine, Bacon v. York County, 26 Maine 491: in Minnesota, Taylor v. Taylor, 10 Minn. 107; O'Farrall v. Colby, 2 Minn. 180: and in Tennessee, Marshall v. Kerns, 2 Swan 68.

307

HADLEY V. CITY OF ALBANY.

In the Court of Appeals of New York.

SEPTEMBER TERM 1865.

(REPORTED 33 NEW YORK 603.)

[Returns.]

The common council having once legally canvassed the returns of the election for mayor, have exhausted their power, and cannot subsequently reverse their decision by making a different determination.

The effect of the returns is not open for consideration in a collateral proceeding, in which the title of the officer is in question.

This was an action by James Conlon to recover his salary, as a policeman, for part of the year 1857; the plaintiff having died, pendente lite, Hadley, his assignee, was substituted. The defence was, that Conlon had been removed from office, by John V. P. Quackenbush, as mayor, together with the recorder and an alderman of the city. The question was, whether Mr. Quackenbush was legally the mayor; the plaintiff contending that Eli Perry, and not Quackenbush, was mayor.

It appeared on the trial, that on the 15th April 1856, the common council of Albany determined that Eli Perry was duly elected mayor for the term of two years, at an election held on the 8th inst.; that a certificate of election had been issued to him, under the seal of the city, authenticated by the clerk of the common council, whereby it appeared that Eli Perry had a plurality of all the votes cast, and that J. V. P. Quackenbush had the next largest number of votes; and that Perry had qualified and entered upon the discharge of the duties of his office. The defendants offered to prove a canvass of the returns of the recent charter-election, at a subsequent meeting of the common council held on the 6th May 1856; which was objected to, on the ground that the new council had no power to re