Evening star. [volume] (Washington, D.C.) 1854-1972, 1868-11-19
TIE FIFTH WARD ELECTION CASES.
The Opinion of the Court.
Decision Against the Contestant.
Judg Olin Dissents from the Decision.

Judg Olin Dissents from the Decision.
This morning, on the opening OF the Court in
General Term, the opinion Of the Court was
deliv, red by Chief Justice Cartier in the case
Of J. w. Meade az t. Joseph w. Carroll. There
was quite a large number Of members Of the
bar present, as also many spectators, who list
ened to the delivery with great attention.
OPINION OF THE COURT.
In THE SUPRRME COURT OF DISTRICT or
COLUMBIA, November lS. lS6S.-Joha w. Msdi
VS.. Joseph g. Carroll. At L0W; No. 5,o64. Con-
tested ElecttoR-T he case before us is based upon
tue complaint Of the petitioner that he is the
duly elected assessor for the Fifth Ward OF the
City of Washington. having received a major
ity of he legal votes poled at the election held
on the fir-t day of June, le65. The undispu.ed
facts OF the cise show that at the election re-
ferred to 1870 votes were polled, of which, ac-
cording to the returns of the Commissioners OF
Election, the petitioner received 912 and the
respondent 9il, leaving majority OF 81 tor
the petitioner, exclusive OF votes given for
Joseph Carroll, which ought 10 nave Deen
creditsd TO the vote given for JOSeph q. CirroII,
thus making the actual minority, according to
the return, n.
This majority, in the absence of other expla-
nalon, would entitle the petitioner to the office
which he claims, aud raises tue necessity or
further inquiry into the legality Of the election.
In the prosecution of further inquiry IL has
been objected that the return OF tue Commis-
sioners, based upon tue list of voters furnished
them by the Judges OF Election, is conclusive
benlnd which neither the Register, IN granting
the certificate of election nor this Court can GO
With regard TO the power of the Register In the
premises, lt Is not important for the present
purposes OF the inquiry 10 determine. We flud
the certificate issued, and the respondent III
possession OF the office. Whatever the Court
may say upon this subject, therefore, rs merely
advisory OF the future action OF The Register.
The law provides "that wherever any person
has received or shall hereafter receive certih-
cate from the Register of the city Of Washing
ton, based upon satisfactory ridence furnished Jy
the Comm ssi,ners Of Eiectioa. notifying him OF
his election to any elective Office OF SAID city,
the person reeeicing such notification shall o.
entitled TO enter upon the discharge of the da-
ties Of his Office, ar the certificate of the
Register shall be prima facte evidence OF his
election to and right 10 discharge the duties of
said Office
1t would appear from this statute, that the
range OF his Investigation and juO g nent is lim-
lted to the eridence FURNISHED 6y the Conan
ers Of Etecfion, aud that evidence necessarily
confined within the sphere of their duties.
II the objection be well founded that tue
Court may not go be hind the act of re gstratiOn,
and the return of the Commissioners based
upon that act the first suggestion that occurs
Is, that the investigation ends where It's bsglns
aud the provision Of the statue Of June 10,
1S6S, section A.
And be 1t f4rtier enacted. That any person
who claims or shall hereafter clam, to be elected
TO any elective office in said city, may conf
mence proce edIngs before the SAID supreme court
OF the District OF Columbia, by petuon setting
foTh the facts upon which be relies, and snail
serve q copy on the in cumJent or pers9n who has
ceiyed the certificate OF election; aud the per-
son so served shall make ans wer to sa ID petition
within five days; and SAID curt shall thereupon
iry the rights OF the parties said oilice IN A
SammGry manner; and for that purpose a special
session shall be called and held whenever
necessary for the purposes of such tritl; and
the decision ot sad court IN any case SO brought
before il snail be final and conclusive.
was enacted in vain. And If this be 50, this
Court has no power to try the right of the par
ties 10 the office. nor is there any virtue in the
provision that their determination shall be finai
and conclusive, inasmuch as the objection pro-
vIdes final and conclusive Judgment before
the case reaches the court The concIusivehe,-
OF ibe determination of the Board of Judges OF
Election in the act OF registration is based upon
the theory that they constitute judicial trI-
bunal, the finding of which is the end OF the
law in the matter under investigation. In this
view the Court do not concur. They are In
sense judicial tribunal. They are simply or
ganized to discharge the duties OF the officers of
election, as they have been exercised and un-
derstood by similar officers under tue name of
Judges or inspectors OF elections, hitherto
charged Win the duty of receiving legal votes,
and rejecting illegal ones. This is made ap-
parent in the law of their creation, .,section 81
OF the act OF February 5th, ls67, which SIMPLY
makes 1t their business to prepare a list of
.'qa0'ifrd' voters. TO BE- used at the election
Ii Judicial tribunal they are such without
parties. ana without proce $, or any other OF n
exact and reliable instruments OF justice II
the case was left 10 rest upon reasons TO he de-
rived from the nature and character of their
duties, there would be no doubt. in our minds,
that the Judges of Election do not come within
the character Of a judicial tribunal, and that
their acts are sublect to an examination by the
court In all cases " contest. But the question
does not rest here. The court are not without
the and Of express authority upon the subject,
The action or Congress in every case that has
franspIred since the organization of the Gov
eminent, from the Firsi to the Forueth Con-
gress, overrules the objection by sweeping
away certificates, returns. and all other super
vcnlDg obstacles OF form and ceremony, TO
reach the last important fact s to Which of tie
cohtestdnfs Tecetred q majority # the tegdi rOfes,
uEpOIB,iy regdriing The gee stiOn, =. tUko has bee
elected " as pdrdm0uHt 10 the formula Of proof
as to he lection. But 1t may be replied to the
precedents and rulings of Congress, that such
action is not authority for courts At law, inas-
much as that body is a law unto itself. We
treat 1t as authority because the con clusion is
essentially rtGh
We are not left solely to the authority of
Congress in enlghtenIng the subject before US
he question is not new in the courts. Will
be seen by reference TO the case of Aud w.
Walton, l2'h Louisiana Annual Reports, y.
100. I'm which case. based upon a statute similar
to the one before US. the court make use of the
language:
1--WE view the ofice Of Registry, nnder this
statuie. as a special tribunal for the trial OF
the right to vote in New Orleans, whose certh-
not subject to revision by the Commissioners
OF Election. We do not hold, however, the
judgments OF that tribunal to be without ap.
peal. The 9th section Of the act provides a
mode OF redress, by suit against the Register
for an applicant 10 whom the Register shall re.
fuse a certificate. And the validity of the GER
tht SuUttfHcy ~ HF pFOT NDOn trbl n
al based, mhy an all cases be Examined, u0oR
contest Of ee cioH, by The tribunals seized OF the ia.
sisdiction Of such c0Htest'' a
Again, in the case Of the Common wealth or
rel Leslie VS.. the County Commissioners, SIN
Rawle, page ~, the Court say:
''But cOncediDg z that the Commissioners have
no discretion in relation TO the return, "a point
which shall hereafter notice. yet It is not per-
ceived how this helps the relator's case, unless
II can also be shown that the return is coucIu.
sve on the Supreme Court, and that in fact
there is no tribunal In the commonw wealth
competent to examine into, and correct gross
fraud or illegality of procedure, on the part OF
the returning officer"
Then on page 70: ''WithOut adverting par
ticularly to the form OF the return, it must be
observed that two returns were made, and il |
was for them to determine which return was
correct or whether either OF them should be
received As It Is made the duly Of the com.
missiOners in a certain event to appoint that |
seems necessarily to imply the power to ju
quire whe ther the event had taken place. on 1
the happening of which 1t became their duty "a |
act n 1. startling doctrine that, in case Of a |
notoriC us frdud. probable riolotion of the Er
q constable could palm an officer Tie public on
the force Of his returR. tbs be the latc it IS use
Tess TO go hrosgh the socks5y Of an election TIE |
constable may return WhOsa he please, dloays toE
ina core Hot his return is correct upon lis ia,
1Lwould be better TO give the appointment 10 |
the stable at once, without the useless car.
mony of an election. The act admits of the |
cons iructi which we have given to it. nor do 1
We perceive any danger in committing TO the |