The People v. Pease.

The judgment, in cases of this kind, is required to be rendered "upon the right of the defendant, and also upon the rights of the party alleged to be entitled" to the office. (Code, § 436.) As was said by BRONSON, J., in the case of Vail (20 Wend., 16), the action "reaches beyond those evidences of title which are conclusive for every other purpose, and inquires into and ascertains the abstract question of right." The greatest number of lawful votes alone gives the right to an elective office in this State; and as no adjudication can be had to determine the lawfulness of votes before they are received, that question must be open to examination by courts afterwards, or there is no power anywhere in the government to discrimi nate between those which are lawful and those which are unlawful. Indeed, if the rule contended for by the plaintiffs, be adopted, the distinction between lawful and unlawful votes ceases to exist when they reach the ballot box. This objection is not answered by referring to the statutes requiring evidence of the right of the voter, before his vote can be received. It is only when the right to vote is challenged that any evidence is required, and there is room for great frauds to be practiced, as well to prevent challenges as to render them ineffectual when made. The only evidence required in any case is the oath of the person offering his vote, no contradiction of which is allowed, nor is there any power (if the courts do not possess it), to deny to such oath the effect of honest and truthful testimony, although every one who hears it may know it to be false and fraudulent. Neither is it an answer to say that the offender may be punished, as the government, if that were the only remedy, would have no means of defence against the direct results of such fraud. I am unwilling to believe that, in a matter of such vital importance as the choice of all its elective officers, the State is thus exposed to assault. The registry act was not in existence when the election now in question took place; but if it had been, it would not have changed the aspect of the present question. Its only effect in this respect is, to require from the voter two oaths instead of one, making the oath equally con

The People v. Pease.

clusive in each case. (Laws of 1859, ch. 380, § 5.) It furnishes additional safeguards against the commission of frauds at elections, and may aid in securing the punishment of offend ers, but it furnishes no means of protecting the government against the consequences of such frauds, and therefore leaves the present question precisely where it stood before.

In England, on trials of this nature, the legality of the votes is always open to inquiry, as it certainly is in this country in suits involving the election of officers of private corporations. (Cole on Quo Warranto, 146-221; Ang. & Ames on Corporations, ch. 4, § 9; 7 Cow., 153; 19 Wend., 635.) The comparatively narrow limits within which the right of suffrage is confined in England deprive the decisions of courts in that country, upon this question, of much of the influence which would be justly due to them upon other questions; and the decisions in corporation cases are still less directly applicable to that under consideration. Those cases, however, show that where the right to an office is in controversy, it is not, as a general rule, conclusively determined by the number of votes which the claimant may have received, but the further question, whether the votes were legal, is open for consideration. Without deciding that question when it is presented, judg ment cannot be rendered "upon the right" of the parties as the statute requires. (Code, § 436.)

In contests in regard to elections to Congress, the legality of the votes, as well as their number, has always been a subject of inquiry (Cushing on the Law and Practice of Legislative Assemblies, § 198); and "I think a court and jury, with better means of arriving at truth, may pursue the same. course." (20 Wend., 14.)

The inconvenience which it is supposed may arise in the trial of such questions, from the great number of witnesses which may be required, especially in trials relating to State officers, has been relied upon as a reason why it should not be held that courts can pass behind the ballot boxes, and try and determine the qualifications of the voters whose votes may have been received or rejected. This argument is certainly not

The People v. Pease.

without force, as cases may readily be imagined where any thing entitled to the name of a trial of the legitimate issues which such an action might present would be literally impossible; but believing, as I do, that the statutes have unquestionably left this duty to the courts, no inconvenience which could be anticipated would justify courts in declining to discharge that duty as far as possible. The past experience of the government has not been such as to induce the court to pay very much heed to this argument from inconvenience. So far as the books of reports show, there has been no case in the State, prior to this, where any such question has been presented, and this does not appear to have involved such a number of issues, or required the examination of such a number of witnesses, as to render the prospect of such trials alarming. But if this were otherwise, the remedy would belong to the legislature and not to the courts. A rule of pleading requiring the parties to specify the votes objected to, and the grounds of objection, or a rule of practice requiring an exchange of notices to the same effect, and the limitation of the parties in their proof to the cases and grounds so specified, as is the practice in England in regard to contested parliamentary elec tions, would go far to remove the difficulty if it should be found to exist. (Roe on the Law of Elections, part 3, ch. 4.) A similar practice is adopted where elections to Congress are contested. (9 Stat. at Large, 568, § 1; Brightley's Dig., 254, 14, and note a.)

My conclusion, therefore, is, that the judge decided correctly at the trial, that evidence was admissible to show that votes received and counted for either of the parties were given by persons who were not qualified electors.

There was no error in the ruling of the judge, that voters might be asked the question for whom they voted. The only grounds of the objection appear to have been, that under our system of elections, which allows, indeed requires, the secret ballot, (1 R. S., 5th ed., 426, § 7,) it is not proper to compel a voter to disclose for whom he voted; and that where the object is to show that he voted illegally, and was, therefore,

The People v. Pease.

possibly guilty of a misdemeanor, he should not be required to give evidence tending to establish his guilt. It is a sufficient answer to these objections, that they are available only to the witness, and not to the party. In regard to the last ground, there is the further answer (the witness having admitted that he voted), that an answer to the question, for whom he voted, could have no bearing upon his guilt or innocence.

The objections to the order in which the proof of the facts should be introduced, involved the exercise of discretion merely, on the part of the judge, which is not, in such cases, reviewable on appeal.

When a voter refuses to disclose, or fails to remember, for whom he voted, I think it is competent to resort to circumstantial evidence, to raise a presumption in regard to that fact. Such is the established rule in election cases before legislative committees, which assume to be governed by the legal rules of evidence (Cushing's Law and Practice of Legislative Assemblies, §§ 199, 210); and within that rule it was proper, in con-nection with the other circumstances stated by the witness, Loftis, to ask him for whom he intended to vote; not, however, on the ground that his intention, as an independent fact, could be material, but on the ground that it was a circumstance tending to raise a presumption for whom he did vote. The refusal to strike out the testimony of Conrad Hoch involved the same principle.

The poll lists of New Bremen and Croghan were rightfully admitted. The only fact in regard to them which was requisite to be established to authorize their admission as evidence appears to have been undisputed, viz., that they were the poll lists of these towns or districts, kept at the election in question. The provisions of the statute relative to such lists must be regarded, mainly, as directory only (14 Barb., 290, 291; 4 Seld., 89); and any failure to comply with such provisions, if lists were actually kept, would not justify their rejection, when offered in evidence. There does not appear, however, to have been any material departure from the direc

tions of the statute in keeping the lists. Neither a heading to

1

The People v. Pease.

show what the paper was, nor the signatures of inspectors or clerks, was required. (1 R. S., 5th ed., 432, § 34; 436, § 57.) The anterior filing of one of the lists was of no moment, so long as its genuineness was unquestioned. What the lists proved or failed to prove, could not be considered in deciding the question of their admissibility.

There was sufficient evidence offered by the defendant to justify the refusal of the ruling, asked for by the plaintiffs' counsel, "that no proof had been given to go to the jury sufficient to overcome the five majority conceded to the relator," of the votes given. The judge could not be understood as ruling that the proof was sufficient to overcome the majority, but only that it was sufficient to be submitted to the jury for their consideration as to its effect.

The refusal to allow the examination of the witness, McRea, in reply to the defendant's proof, under the circumstances disclosed in the case, presented only an exercise of discretion on the part of the judge, which ought not to be reviewed here. If there had been no arrangement made on the subject at the close of the plaintiff's opening testimony, the evidence offered would have been admissible in reply, as a matter of right, and its rejection would have furnished good ground for new trial. But the express reservation, with the approba tion of the court, of the right to call (at the close of the defendant's testimony, as I understand the arrangement) certain witnesses who were named, "for the purpose of showing that illegal votes had been cast at said election for the defendant," might properly be regarded as restricting the plaintiff to those witnesses only, in reply on that subject, although the facts offered to be proved would have been proper in reply, and might have been proved by any witnesses, if no arrangement had been made. It is apparent that the course attempted to be pursued by the plaintiffs might, if allowed, have operated as a surprise upon the defendant. The judge, in whose presence the arrangement was made, was much better qualified to decide, whether it was likely to do so, than this court can be. SMITH.-VOL. XIII. 10