Urbana union. [volume] (Urbana, Ohio) 1862-1872, 1870-09-14

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Rx-AttOrney General Vests Reply to
the County Commissioners, Concern
Ing their Duty as CanVassers Of the
/ Vote on the Question OF Taxation for
Agricultural College Purposes.
10 the Commissioners Of Champaign Co.
GENTLEMEN.-The question touching
your duty as canvassers in regard to the
poll of any township at the special cleo
ton recently held in your county, under
the act of April IS, 1870, of which there
was, and the return of which shows
there was but one clerk, has been
considered, and the conclusion reached,
that every such poll should be excluded.
The grounds of this opinion are in brief
as follows:
Ist By the act under which the said
election was held (67 vol. o. L. 95) it is
provided that ''such election shall
be conducted in all respects as far as
may be as other elections, except that
the returns shall be made to the County
Commissioners at the Auditors Office &C.,
and said Commissioners shall canvass
the votes"
I'd. By the law governing the conduct
of "other elections" rs. and S. 381,) it is
provided that ''at all elections &C., the
trustees of the several Townships shall
serve as judges, and the clerk of the
Township and such other persons as the
judges shall choose shall serve as clerks.
Sd. 1t is also provided by the same
general law Is. and G. 533) that ''at the
close Of the polls the poll books shall be
signed by the judges, and attested by
the Clerks, and IS. and G. 535,) "the
judges before they disperse shall put un-
der cover one of the poll books, seal the
same and direct it &C."
The provisions of the statue are, thus
explicit and peremtOry, that of "Other
elections" }" there shall be three judges and
toUo clerks, who shall keep duplicate poll
books. The precautionary reas Ons for
this to guard against fraud and mistake
are obvious. 1t would seem to result
therefore as a necessary consequence too
plain to be made more SO by any reason
ing or logic that any special election of
which there shall have been but one
Judge or one clerk cannot have been
conducted as ''other elections"
But the Commissioners are required
by the act to canvass the votes of any
such special election, which shall have
been conducted as other elections. Are
they also required to accept and canvass
the votes of any poll, which was not
and the return of which shows it was
not SO conducted? It would seem con-
trary to reason that they should be. If,
they were, then the absence of all the
machinery required by law in the con-
duct of the election, might be disregar-
ded, and mere viva vOce expression of
a popular meeting, without judges,
clerks, poll books or ballots, might be
received and included in canvass. But
the absence of how much of this ma
chinery may the Commissioners over
look and yet receive and canvass the
polls. It will be difficult to fix any linn
its. No more reasons exist for recogni- |
zing poll of which there was but one
clerk, yet apprehend that none will
contend that poll having but one judge
should be canvassed. In neither case
could the election have been cOnduc-
ted as 'Other elections"
It only remains then to be considered |
whether the Commissioners are bound
to canvass the votes Of poll, notwith-
standing the return thereof shows it to
have had but one clerk, and therefore
not conducteda as other elections. The re-
turn is the sole evidence the Commits |
sioners have or can have of the mode in
which the election was conducted. 1t
may have been all fair and honest and |
show an accurate expression of the peo-
pies will, SO might VIVA voCE vote,
but the canvassers cannot know or pre-
sumo thatin the absence of substantial
part of the machinery, and material
portion of the evidence which the
law requires. 1t is not like a mere in
formality in the return, as where suffi-
cient number of officers having acted on
| ly portion from controversy or other
cause attest the poll. The want of
judges and clerks reaches beyond infor-
mality to matters of substance, to part
of the essential machinery of the polls,
necessary to authenticate its integrity.
In other elections, the Clerk of the
Common Pleas, to whom the returns are
made is forbidden to decide the validity
thereof Is. and G. $685. The existence
of this provision shows that but for it he
might so decide.
But this provision is not in terms ap-
plicable to the commissioners in the pres
ent case. Is it so applicable from anal
Ogy? In other elections an appeal and
contest are provided. In this there is
neither. A poll received and canvas
sed by the clerk may if ferrOneOus he pur-
ged and corrected, and the proper result
secured. In this an erroneous reception
and canvass of the poll might defeat a
proper result; the time within which it
must become efectual, or be forever
lost, being too short for statuary contest.
This prohibitary clause is therefore not
applicable from any analogy between
the present and other elections, hence
the conclusion before stated that poll
of which there shall have been but one
Judge or one clerk should be excluded
, from the canvass.
1t is possible that in this opinion !
may err, but think not. Even if |
should, no permanent hardship can re-
suit from acting upon it, for parties feel
ing themselves agrieved have ample
remedy by judicial proceeding to COM
2 pelI the canvassers to restore and count
the excluded poll if it shall appear to
have been enormously rejected, so that
in the end no right will have been per-
mouoOtlv loaf RPSDaOf1llV.