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than fifteen days from the day of the election, but allowing such person five days' notice of the contest. (R. S. Sec. 572.)

tried.

SECTION 5163. On the same day that he issues the no- How contest tice to the person whose election is contested the probate shall be judge shall issue summons to three freeholders of the county, not resident in such township, to appear on a day specified therein and try the contest. The summons shall be directed to the sheriff or a constable of the county and shall be served at least three days before the time appointed for the trial, and return thereof made at the time and place of the trial. (R. S. Sec. 573.)

SECTION 5164. On request of the contestor or the per- Witnesses. son whose election is contested, the probate judge may issue subpoenas for witnesses directed to the sheriff or a constable of the county who shall serve and make return thereof to the judge at the time and place therein named. (R. S. Sec. 574.)

SECTION 5165. The jury of freeholders shall be sworn Trial of to try the contest on the evidence. No evidence shall be contest. admitted which does not relate to the points set forth in the notice. When the trial is closed, the freeholders shall sign their decision, which shall be attested by the probate judge. If, by the decision, a vacancy exists in the office of justice of the peace, within three days thereafter, the judge shall transmit a copy thereof to the trustees of the township or, if there are no trustees, to the clerk thereof. If by the decision the election is valid, he shall so certify to the proper officers, and the provisions of law thereafter applicable shall be complied with. (R. S. Sec. 575.)

SECTION 5166. No election of a justice of the peace shall be set aside because illegal votes were cast at the election, if it appears that the person whose election is contested has the greatest number of legal votes given at such election. (R. S. Sec. 576.)

NOTE: The nominees for the office of justice of the peace of a township containing more than one precinct, receiving the highest number of votes of such township are entitled to the certificates of election, without regard to the precinct in which they reside.

SECTION 5167. If a freeholder summoned fails to attend at the time and place of trial, the judge shall appoint another freeholder in his place. If the judge fails to attend the trial, any disinterested justice of the peace of the county may perform the duties required of such probate judge. (R. S. Sec. 577.)

What votes shall be

thrown out.

Talesmen;
justice to pre-
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judge.

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SECTION 5168. If the contestor fails to set aside such Costs, how election, the judge shall render judgment against him for paid. the costs, from which judgment there shall be no appeal, and issue execution therefor to the sheriff, or a constable of the county. If the election is set aside, the costs shall be paid by the township in which it was held. The judge

Contest of election of municipal officers.

shall make out and certify a bill of such costs and forward it to the trustees of the township who shall issue their orders on the township treasury for its payment. The probate judge and each freeholder shall receive for each day one dollar, and the witnesses, sheriff or constable the same fees as in other cases. (R. S. Sec. 578.)

MUNICIPAL OFFICERS.

SECTION 5169. The election of any municipal officer, except a member of the council, may be contested in the manner hereinbefore provided for contesting the election of justices of the peace, but in cities the election of any such municipal officer may be contested only in the manner provided for the contest of election of county officers. (R. S. Sec. 1731.)

NOTE: In a proceeding to contest the election of a township trustee held under the Australian ballot law, rejection and destruction of the ballots by the judges of election is not final or conclusive, but the contents of the ballots thus rejected and destroyed may be shown by parol.

In the absence of any statutory provision for the contest of election of township officers quo warranto is the proper remedy for determining the legality of an election of township trustee.

A statute will not be construed as abridging or repealing the right to contest an election for fraud or mistake unless such intention is clearly expressed.

State ex rel. v. Conser, 5 C. C. (N. S.) 119.

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electors.

SECTION 5170. At twelve o'clock on the day appointed Meeting of by the congress of the United States, the electors of presi- presidential dent and vice president of the United States, shall meet at the state house in Columbus, and then and there perform the duties enjoined upon them by the constitution and the laws of the United States. (R. S. Sec. 2971.)

to governor

SECTION 5171. Before the hour of twelve o'clock on Electors shall the day next preceding the day fixed by the law of congress give notice to elect a president and vice-president of the United States, of their preseach elector of president and vice-president shall give notice ence. to the governor that he is present, and ready at the proper time to perform the duties of an elector. Thereupon the governor shall deliver to each such elector a certificate of the names of all the electors. (R. S. Sec. 2972.)

of elector

SECTION 5172. If any of the electors are absent, and How vacancies fail to appear before nine o'clock on the morning of the day in the office appointed for the election, the electors then present shall filled. immediately proceed to elect by ballot in the presence of the governor, persons to fill the vacancies occurring through such non-attendance. (R. S. Sec. 2973.)

the governor

he notified by

SECTION 5173. If two or more persons receive an Tie votes deequal and the greatest number of votes at such election, the termined by governor, in the presence of the electors attending shall de- by lot. termine by lot which of such persons is duly elected, otherwise he or they having the greatest number of votes shall be considered elected to such vacancies. (R. S. Sec. 2974.) SECTION 5174. The electors making such choice shall Electors shall forthwith certify to the governor the names of the persons the governor. so chosen, and the governor shall cause immediate notice in writing to be given to each of them. The persons so chosen and notified and not the persons in whose place they have been chosen, shall be electors, and shall meet the other electors at the time and place appointed, and then and there discharge all the duties enjoined on them as electors by the constitution and laws of the United States and of this state. (R. S. Sec. 2975.)

of electors

SECTION 5175. Each elector shall receive three dollars Compensation for each day's attendance at Columbus as such, and mileage and how paid. at the rate of ten cents per mile for the estimated distance by the usual route, from his place of residence to Columbus. Such compensation and mileage shall be paid by the state. (R. S. Sec. 2976.)

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