(Validity of a minority election.)

which they assembled, which, in terms, required the election to be by ballot; their remonstrances were, however, ineffectual; two of the members being appointed tellers, the board proceeded to make choice of a treasurer vivâ voce. The result was, ten votes vivá voce for George Read, and nine votes viva voce for John Thompson. While, however, the voting was in progress, and when the name of Abraham Miller, a member of the senate, representing the city, was called, that gentleman came forward to the chair, and tendered his vote by ballot, affirming, at the same time, that any other mode of voting being illegal, he would not participate in it. Whether this vote was accepted or rejected, is a question of important influence in the decision of the cause, and your attention will hereafter be particularly called to it.

In regarding the legal character of these proceedings, we will first consider the effect of the votes given to the defendant vivá voce; and secondly, the legal effect of the ballot vote tendered by Mr. Miller, if that vote was received by the board.

In reference to the first subject of consideration, our duties are free from embarrassment; both parties concur in repudiating the viva voce votes as illegal.* The relator rests his case mainly on that ground; and the defendant, as distinctly, disclaims holding his office on such an election. (The learned judge here proceeded to dispose of an objection to the constitutionality of the act of assembly, and continued:) For the reasons, however, assigned, we are of opinion, that the law of 1836, giving the countyboard power to elect the county treasurer, is constitutional; and that this power can only be exercised in the manner prescribed by law: hence, it follows, that the votes given viva voce for George Read are mere nullities; that he could not have been chosen by such votes, even had they been unanimous; and that if he has no better claim to the

*See Foster v. Scarff, 15 Ohio St. R. 535.

(Validity of a minority election.)

office he exercises than that which he derives from such an election, the law of the land makes it your duty to find the issue against him, and in favor of the commonwealth.

This brings us to the second subject of consideration connected with the doings of the county-board; we mean, the legal effect of the vote by ballot, said to have been given by Mr. Miller. Admitting for the present, that Mr. Miller tendered such a vote; that it was received; and that no other legal vote was given; what result would legally follow?

We concur in opinion with the relator's counsel, that the county-board is a quasi corporation, and as such, it is governed by the fundamental rules which the common law has provided for the better government of corporate bodies, and for the proper exercise of the corporate functions. The rule immediately applicable to the case before us, is that found in the case of Rex v. Foxcroft, 2 Burr. 1017, decided in 1760. There, the elective body consisted of twenty-five; and out of this number, twenty-one assembled; nine of these persons voted for Thomas Seagrave, as town-clerk; but twelve of them did not vote at all, and eleven protested against any election at that time. The question arising, whether Seagrave was or was not elected, it was held by the court of king's bench, that he was duly chosen; that the protesting electors had no way to stop the election, when once entered on, but by voting for some other person than Seagrave, or at least, against him; and that, whenever electors are present, and do not vote at all, they virtually acquiesce in the election made by those who do. Again, it has been held, that if the corporate assembly be duly convened, and the majority vote for an unqualified person, after notice that he is not qualified, their votes are thrown away, and the person having the next majority, and not disqualified, is duly elected. 1 Willcock on Corporations § 547; Claridge v. Evelyn, 5 Barn. & Ald. 81. The New York cases cited in the argument

(Validity of a minority election.)

rest on the same principles, which are also alluded to and recognised by our own supreme court in the recent case of Commonwealth v. Green, 4 Whart. 531.

The doctrine of these cases I do not understand to be contravened by the relator's counsel; who, however, contends, that although electors who refused to vote, are considered as assenting to the doings of those who do vote, yet that, to make such an election effective, a quorum of the elective body must be present, and that the presence of such a quorum can only be evidenced by a number equal to such a quorum actually voting. To authorize the county-board to proceed to the election of treasurer, it is necessary that at least eleven members of the twenty comprising it, should be present; but, if the majority of those present either refuse to vote, or vote in a manner different from that prescribed by law (as by voting vivâ voce, when the law requires them to vote by ballot), we are of opinion, that a minority, composed even of a single member, is sufficient to make an election, and that consequently, the presence of a quorum, when such an election is said to have taken place, is not required to be proved by the legal votes actually given, but may be established by other proof, like any other fact in the cause. The wisdom of the rule is manifest, and without it, it would be difficult, if not impossible, to transact the business of a large deliberative assembly. If a majority of the elective body in a corporation, or quasi corporation, such as the county-board is on all hands regarded to be, could prevent an election, either by refusing to vote, or, what is the same thing, refusing to vote in the manner provided by law, the business of such bodies could not progress, and their legal existence would be put in jeopardy. In all our public elections, those who neglect or refuse to vote according to law, are bound by the votes of those who do vote, no matter how small a minority those who vote are of the whole constituency. It is an historical fact, that about forty thousand electors who voted for one or the

(Validity of a minority election.)

other of the candidates for governor at the late election, did not cast any vote for or against the amended constitution; and yet, that instrument has, by a comparatively small minority, become the supreme law of the land. The result of our opinion is, that if you are satisfied from the evidence, that Abraham Miller tendered a vote by ballot, for the defendant, and that his vote by ballot was received as such, then has the defendant sustained his plea of having been, on the first of April last, duly elected county treasurer.

This then is the great turning question of the cause; and being a question of fact, is for your decision. The statement of Mr. Miller is clear and distinct, in this particular: he says, that after protesting and voting against the amendment which ordered the election to proceed vivá voce, he finally voted for the resolution, as amended, to proceed to the election: that when his name was called, he walked up to the table, where the teller sat, and presented a ballot: that he was not quite certain, whether he presented it first to the chairman or not, but that it was in the hands of the chairman: that he then said, I offer this ballot; it is the only legal vote, and the only vote I shall offer: that the chairman appeared to hesitate, and some member proposed that he (Mr. Miller) should read it: that he refused, and said he would claim the ballot privilege in its fullest extent: that, the hesitation of the chairman continuing, he asked for his decision, whether it should or should not be received; and that, after some consultation with the members, the chairman (Mr. Heston) decided it could not be taken: that he then protested against this violation of his rights, before all present, and left the room. He further states, that he was not quite certain, whether Mr. Heston, the chairman, did or did not read his ballot before he decided; but that he thought, that when he held his ballot, it was in the same form, as when he handed it to him; that he voted for George Read. The statement of this most respectable and intelligent

(Validity of a minority election.)

gentleman, who may fairly be presumed to know as much of the fate of his own ballot as any one else, while it clearly proves a tender of it, seems as clearly to negative all idea of its reception. In the testimony of the other gentlemen examined, there are to be observed the ordinary differences which take place among individuals of equal intelligence and integrity, detailing the same transaction. On such occasions, the attention of one being directed to one part or position of the subject of inquiry, and of the other to a different point of view of the same thing, there will be a necessary difference in the minutia of their testimonies. The numerical weight, however, of the witnesses both for the plaintiff and the defendant, would seem to sustain the statement of Mr. Miller, that his ballot, though tendered to, was not received as a ballot by the chair.

This is, however, as we have said, the great question of the cause, and was properly so treated by the counsel who conducted the argument for both the parties litigant. Being a question of fact, it is exclusively for your decision. If you are satisfied, from a careful view of the evidence, that the ballot vote of Abraham Miller was received at this election, then, in the opinion of the court, being given for George Read, it was sufficient, under the facts disclosed in the case, to elect him county treasurer. If, on the contrary, the aggregate of all the testimony of all the witnesses convinces your understandings, applied as they ought to be to nothing else than the law and the facts of this case, that the vote of Mr. Miller, though offered by him, was not received, then no legal election of county treasurer took place in April last. The office in that case is vacant; and the county-board, or if, as is said, the power has since returned to the commissioners, then the latter, must assemble and elect a county treasurer according to law. If you should be of opinion that the vote of Abraham Miller was not received, of course, your duty terminates, and the verdict must be for the commonwealth.