(Evidence in contested election cases.) shall have been a citizen for ten days, and an inhabitant of this state for one year next preceding any election, and for the last four months a resident of the county where he may offer his vote. Art. II., sect. 1. It follows, that none others than those possessing these qualifications can lawfully vote. All votes are to be by ballot, and offered to the inspectors of election, on the day of the election; and it is made, by statute, the duty of each inspector to challenge every person offering to vote, whom he shall know or suspect, not to be duly qualified as an elector. 1 Rev. Stat. 433, § 36. And § 41 (same page), declares that, in case any inspector of election shall knowingly and wilfully permit or suffer any person to vote, at any election, who is not entitled to vote thereat, the said inspector so offending, on conviction, shall be adjudged guilty of a misdemeanor. If a person offering to vote be challenged, it is made the duty of the inspectors, to administer to the voter the preliminary oath prescribed by the statute, and to put such questions to the voter as may tend to show his right to vote; and if any person shall refuse to take such preliminary oath, or to answer fully any questions which shall be put to him, his vote shall be rejected. 1 Rev. Stat. 430, §§ 18-20. If the person offering to vote shall persist in his claim to vote, after the inspectors shall have pointed out to him wherein his right to vote shall appear to them deficient, the inspectors shall then, if the challenge be not withdrawn, administer the general oath set forth in the statute; if the oath is refused to be taken, the vote is to be rejected. Ibid. 430, 431, §§ 21, 22, 24. It is seen, therefore, that the inspectors have no authority, by statute, to reject a vote, except in these three cases: after refusal to take the preliminary oath; or fully to answer any questions put; or on refusal to take the general oath. And the only judicial discretion vested in them is, to determine whether any question put to the persons offering to vote, has or has not been fully answered. If the questions put have been fully answered, and such (Evidence in contested election cases.) answers discover the fact, that the person offering to vote is not a qualified voter, yet, if he persist in his claim to vote, it is imperative upon the inspectors to administer to him the general oath, and if taken, to receive the vote and deposit the same in the ballot-box. These are all the safeguards the legislature have thought proper to provide, to ensure the prevention of fraudulent or illegal voting; and this leaves but little discretion to the inspectors; their duties, except in the single instance adverted to, are simply ministerial in the reception of the votes, and entirely so, in counting and making returns thereof. The legislature have left to those bodies having the power to judge of the return and election of their own members, to correct any abuses which may have resulted in such election; and to judicial investigation, where the legal rights of individuals are concerned or affected, to apply such remedies as the nature of the case calls for. An action is prescribed by law, in the nature of a quo warranto, to determine, as well the question of usurpation of the person in office, as the claim of the person asserting his right thereto; in this action, the determination disposes as well of the public interest as of the private right. It is not of so much importance, so far as the public is concerned, which of two claimants shall discharge the duties of an office; but the private right of an individual to the fees and emoluments of an office, is properly and legitimately the subject of judicial cognisance, and to adjudicate upon this right, it becomes essential to determine who was legally and duly elected or appointed to it, and who is entitled to discharge its duties, and receive and enjoy its fees and emoluments. The provisions of the Code, in reference to this action, are ample to cover and secure, as well the interests of the public, as the private rights of the parties; the determination of those rights necessarily leads to an investigation into the title of the claimant to the particular office, and such investigation (Evidence in contested election cases.) must result in a determination of the legality of the election or appointment of the one or the other. 1 It is made the duty of the board of county-canvassers, upon the statement of votes given, to determine what person, by the greatest number of votes, has been duly elected to any office mentioned in said statement. Rev. Stat. 438, § 10. County treasurers of the several counties of this state are to be elected at a general election, and hold their office for three years. Ibid. 406, § 17. And the certificate of the board of canvassers authorized to canvass the votes given for any elective office, is made evidence of the election of the person therein declared to have been elected. Ibid. 410, § 22. But such certificate is only primâ facie evidence of the title of the person receiving it, to the office therein mentioned; in all cases where the proceeding is by quo warranto, or in an action of that nature, it is held, that such proceeding is instituted to try the right to the office directly, and it is competent to go behind the certificate, which would otherwise be conclusive, to ascertain the real facts of the case. People v. Seaman, 5 Denio 409; People v. Ferguson, 8 Cow. 102; People v. Van Slyck, 4 Cow. 297; People v. Vail, 20 Wend. 12. In this last case, Bronson, J., says, "such proceeding reaches beyond those evidences of title which are conclusive for any other purpose, and inquires into and ascertains the abstract question of right:" he also says, “in those legislative bodies which have the power to judge of their own members, it is the settled practice, when the right of the sitting member is called in question, to look beyond the certificate of the returning officer; and I think a court and jury, with better means of arriving at truth, may pursue the same course." But while it is conceded, that this proceeding is to ascertain the very right of the person to the particular office, and that, by means of it, any negligence, mistake or fraud of the inspectors or canvassers in their proceedings may be corrected, yet, it is contended, if the inspec (Evidence in contested election cases.) tors have received and allowed votes to a party, given by persons not qualified to vote, such proceeding is final and conclusive, and the party thereby defrauded of an office to which he was duly elected, by having received the greatest number of legal and qualified votes, has no remedy, but must submit, as well to the loss of the office as of the fees and emoluments growing out of it. I cannot assent to such a proposition. What is it that confers title to the office, and the legal right to the reception of its emoluments? It surely is the fact, that the greatest number of qualified voters have so declared their wishes, at an election held pursuant to law. It is not the canvass or estimate or certificate which determines the right; these are only evidences of the right, but the truth may be inquired into and the very right ascertained. When it is so ascertained, the legal consequences follow, that the person usurping the office is ousted, the person legally entitled takes the office and its fees, &c., and recovers from the usurper the fees or emoluments belonging to the office, received by him, by means of his usurpation thereof. If the term of the office should have expired before the final determination of the question, it follows, that the successful party cannot take the office, but he will be none the less entitled to recover the fees and emoluments to which he was legally entitled, which may have been received by the usurping claimant. Now, can a person be deprived of the fees, &c., by the votes of persons not qualified to cast them? It would seem, that the statement of the proposition furnishes its own answer. The constitution prescribes who may vote, and it is needless to say, that none others can lawfully do so; but if, through inadvertence, fraud or mistake, the votes of persons having no right so to vote are taken and counted for a particular candidate, and he is thereupon, by reason of counting and allowing such votes to him, declared duly elected to a given office, and enters upon the discharge of its duties, and receives the fees and (Evidence in contested election cases.) emoluments pertaining thereto, can he interpose such illegal votes to the claim of the person rightfully elected by the greatest number of legal and qualified voters? Can he make title to the office, by the votes of those who have no legal or constitutional right to vote, in other words, by the wishes of those not voters? In my opinion, clearly not; the very right to the office is determined by the fact, to whom was the greatest number of legal and duly qualified votes given? Or suppose, that instead of the voting having been by ballot, it had been vivâ voce, and the relator in the present case had 1702 persons declaring for him, for county treasurer, and the defendant 1698, and of those declaring for the relator, it conclusively appeared on the trial, that ten, fifteen or twenty of those thus declaring for him were women, minors or aliens, and thus not voters, and that all those declaring for the defendant possessed the legal qualifications of voters, could there be a moment's doubt as to which was legally entitled to the office? I do not see that there could; and the supposed case is, in substance, that now under consideration. How can those who have no legal right to interfere with, or be heard at an election, deprive the legal and qualified voters of their legitimate choice, or the person duly elected by them to an office, of its emoluments and advantages? A vote is but the expression of the will of a voter; and whether the formula to give expression to such will, be a ballot or vivá voce, the result is the same; either is a vote. It is a paradox to say, that a vote can be given by one not a voter, and as it is the greatest number of votes which elects a candidate and gives title to the office, it follows logically, that those ballots given or handed in by persons not voters, are not votes, and cannot, therefore, be rightfully estimated, or have any influence upon the result. Ordinarily, there would be great difficulty in separating or ascertaining which ballots were legal, and which have no validity whatever, as being given by non-voters; but in the case at bar, it is clearly ascertained, that five ballots |