HOWARD v. SHIELDS.

In the Supreme Court of Ohio.

DECEMBER TERM 1865.

(REPORTED 16 OHIO STATE REPORTS 184.)

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A regular and perfect tally-list is primâ facie evidence, on a contested election, of the votes therein set forth.

If the judges or clerks of an election omit to sign the poll-books or tallysheets, to fill up blanks in the caption, or to state the aggregate number of the voters, these and the like omissions may be corrected by parol; and the documents, when so corrected, are competent evidence of the result of the election.

Error to the Common Pleas of Brown county. The facts of the case are stated in the opinion of the court.

Louden and Sloane, for plaintiff in error.

Thurman, for defendant in error.

WELCH, J., delivered the opinion of the court. The original case was an election contest; Howard had been declared elected sheriff of Brown county, and Shields, an elector and rival candidate, contested his election, under the provisions of the statute on that subject. In the common pleas, the contest was decided in favor of the contestant, and he was declared duly elected; to reverse this judgment, the present petition in error is presented.

The errors assigned are numerous, but may be substantially reduced to three: the first is, that the court erred in overruling the motion of the respondent to dismiss the case, for uncertainty and insufficiency of the notice of contest. (The learned judge, after a full consideration of the sufficiency of the notice, under the Ohio statute, proceeded as follows:)

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The second error assigned is, that the court rejected the tally-sheets and poll-books of three several elections held in the army, under the acts passed for that purpose. These tally-sheets were in conformity to law, and unobjectionable. The defects in the poll-books accompanying them were, that the number of voters was not stated at the foot, and did not appear otherwise than by counting the names, and that they were not signed by the judges and clerks; in other respects they are regular and according to law. The names of the judges and clerks are recited in the caption of the poll-books, and are signed to the affidavit which stands immediately below the place where they should have signed the poll-books. These tally-sheets were received and counted by the county-canvassers, and form part of the abstract made out by the clerk; the record shows that they were rejected by the court below, together with so much of the abstract of the countycanvassers as consisted of the votes therein evidenced. In rejecting these papers, we are satisfied the court erred. The tally-sheet alone makes a primâ facie case; it is upon the tally-sheets alone that the county-canvassers declare the result; the poll-books are not sent to them. If the tally is good before them, it should, until impeached, be good before the court; the policy of the law seems to be, that, until the contrary is shown, the tally-sheet shall be taken and considered as a true statement of the number of legal votes cast for each candidate; of course, it is open to be impeached by the other party; but it is hardly necessary to say, that an informal or defective accompanying poll-book, in no way contradicting its statements, is not an impeachment.

If, however, the poll-books were indispensable, was there not, substantially, a sufficient signing to make them valid as such? The judges and clerks signed the affidavit; we have, then, their oaths and their signatures; would an additional signature add anything to the verity of the paper? I think not; I think the requirement to sign at

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the foot, and the requirement to state the whole number of votes (a matter which can be obtained from the body of the poll-book), should be considered as merely directory, and not as absolutely essential. The original act, which requires the county-canvassers to make their abstract from the poll-books, and not from the tally-sheets, declares, that "no election shall be set aside for want of form in the poll-books, provided they contain the substance." 1 S. & C. Stat. 539, § 33. If these were defects in substance and not in form merely, it is enough to say, that the tallysheets were perfect and unimpeached.

The remaining assignment is, that the court erred in excluding parol evidence offered by the respondent, to supply defects in the tally-sheet and poll-book of an election held in the 70th regiment, Ohio volunteer infantry. In this case, the tally-sheet and poll-book are both defective. The tally-sheet has the proper recitals in its caption, of the time, place and military organization; and of the names of the judges and clerks; but it is not signed by the judges and clerks. The poll-book is properly signed by the judges and clerks; but it has no recitals in the caption, the blank spaces being unfilled. Each, taken separately, is substantially defective; and yet, both taken together, show all the necessary facts. In order to supply these defects, the respondent offered, in connection with the tally-sheet and poll-book, sundry depositions, taken before justices under the notice, fully authenticating the tallysheet and poll-book, as the tally-sheet and poll-book of said election, actually kept and made out by the judges and clerks who signed the poll-book, and at the time and place, and in the regiment named in the tally-sheet; and that the voters credited to Brown county thereon, were residents of said county. This evidence, as well as the tally-sheet and poll-book to which it referred, was rejected by the court.

The question presented by this assignment of error is

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important, and so far as we know, has never been directly before the court. That question is, can the court, in trying a contested election, go behind the poll-books and tally-sheets, to supply and correct mere omissions and mistakes in them, by parol evidence? We have no hesitation, either upon principle or authority, in answering the question in the affirmative. For what other purposes the court can go behind them, it is not for us now to decide; much less is it necessary, in the present case, to undertake to draw the line between what is merely direc tory and what is vital, in the provisions of law regarding such documents; the question is not best determined in that way; such provisions may be considered directory for one purpose, and vital for another.* The provision, for instance, that the poll-book shall be signed by the judges and clerks, may be vital, as to the poll-book per se, and yet directory as regards the legality of the election itself.

The question to be decided in an election contest is, which party received the greatest number of legal votes? If the court can, as it necessarily must, go behind the abstract, why should it not also go behind the poll-books and tally-sheets? And if it go behind the latter for any purpose, one of the first and most obvious would seem to be, to cure mere mistakes and formal omissions. If you may impeach them by parol, why not sustain them by parol? We apprehend the true rule to be, that both the abstract and the poll-books and tally-sheets, when substantially correct upon their face, are primâ facie sufficient, but may be impeached by evidence aliunde, showing their falsity or insufficiency; and that, when not so substantially correct upon their face, they may be sustained in the same way. To hold that when an election has been in fact held, and the majority of the legal voters have in fact, and according to the prescribed forms of law, cast

Another illustration of the impropriety of vesting such discretionary powers in an elective judiciary.

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their ballots for the candidates of their choice, the constitutional rights of the voters and of their candidates, can be defeated by a mere misprision or omission of the judges or clerks, would be manifestly unjust, and contrary to the plain intent and spirit of our election laws. Such a result should be permitted only in cases of necessity, arising from the want of proper means to ascertain, with reliable certainty, the facts of the case; such is not the case here. We have all the facts, and they are not, as the case now stands, disputed; they are contained in the poll-book and tally-sheet, supported by the parol evidence; together, they show an election held according to law, and the precise number of votes actually cast for each candidate. To this evidence, the contestant demurs; we think that such a demurrer, in an election contest, is not well taken.

That in such a contest the court, unlike the canvassers, can go behind the tally-sheets and poll-books, seems well settled in New York, and we are shown no authority to the contrary elsewhere. People v. Cook, 8 N. Y. 67; People v. Van Slyck, 4 Cow. 297; People v. Ferguson, 8 Cow. 102; People v. Vail, 20 Wend. 12. In the last-named case, the court, in speaking of the injustice of a contrary holding, said, "it would be nothing less than saying, that the will of the people, plainly expressed in the form prescribed by law, must be utterly defeated, by the negligence, mistakes or fraud of those who are appointed to register the results of an election." And again, "I think we are bound, in this proceeding (a quo warranto), to go back to the town canvass, and rectify the errors in the statement of the inspectors." In Ohio, we have but a single dictum on the question, and that is in Ingerson v. Berry, 14 Ohio St. R. 325, where the judge delivering the opinion, in speaking of the powers of the court, says, "it is clothed with full power to judge of the validity of the returns as shown by the poll-books, and to go behind them and inquire into the legality of every vote which they exhibit."