Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1871-02-07

II
was to add up the result and certify the
same to the proper court-in this case
TO the County Cortland to give Curry
a certificate Of election. III the election
was illegal, the contest then should have
been made by Wright, II would have
been proper for him to show, in regu-
lar contest, that the election was Illegal
II was certainly not the duty of Curry to
contest the election. He bases his right
Of recovery upon the validity Of the cleo
ton; he can only succeed by maintain
ing it, He does not deny the right Of
single voter at the polls. He does not
question the legality Of any proceeding
ia the election. Upon the contrary, he
asserts the legality. His bill would be
defective il it did not so insist. His
claim, however, is that q ter the election
he was entitled to certificate, and
should have been inducted into office.
He contests simply the truth Of Shocks
certificate that Wright was elected Sher-
III, and denies that Shocks certificate
can make the defendant Sheriff, in oppo-
sition to the returns Of the election.
By looking to the Code, Sec. 907-9l2,
the distinction between contested cleo
ton and quo warranto proceeding will
be seen. By the first you may go into
the ballotbox, or beyond it even, to the
voter and ascertain the actual number
Of legal votes, and for whom cast, and
the judgment may be for the highest
number Of legal votes cast, though the
candidate is not the party returned by
the judges and clerks. Or the court
may adjudge the election void. Under
the proceedings in that form the validity
of the election may be questioned But
when the fact Of an election is to be in
quired into, and who received the high
est number Of votes, that can be inquired
into by the quo warrantc. u.s.
If the defendant justifies under an
election in the quo wauanto, the burden
is upon him to show the fact Of his cleo
ton, (27 New York, As. Bouvier's Law
Dictionary, title quo warranto. But
when he shows the fact of his election,
there the inquiry ends The ballot-box
cannot then be gone into, nor the valid
ity Of an election controyerted- |
think this is the meaning of Section
1923 Of the Code It allows an in
quiry into all the facts that do not
question the validity of the election.
But any Indifferent person could main
tain this action, not seeking any right or
title in himself (Sec. 34l4), and if sue
cessful the legal effect would be the same.
In that event it could not be a contest,
and the court, under Section 34l9, could
give the office to the rightful owner.
| If these views be correct, and they are
abundantly sustained both by principle
and authority, the investigation in this
case ought not to go beyond the returns
made by the judges of the election to the
| Commissioner of Registration, and his
duty was simply to add up the returns,
and report the result to the proper tri-
bunal, giving a certificate of election to
the party receiving the greatest number
of votes. His duty ispurely ministerial.
He should not be permitted to canvass
person into or out of office.
/ have, however, looked further into
this case to see if from the proof offered
there was any evidence that the two voting
places in the Tenth Ward, of this city,
we're properly appointed by the County
| Commissioners defendant insisting
if they were not legally appointed, then
he should have received the certificate.
Under the view | have taken above, this
is not material. But | have, notwith-
standing, looked into it, and find that the
Tenth Ward was established by act of
the Legislature on December l3, 1867;
and that by act Of December l6, 1867,
the Legislature authorized the appoint
ment Of four additional voting places in
the county. 4tf. .fy,ll4
On March 6, 1868, the County Com
missioners in an order recite that they
had designated two places in the Tenth
Ward as voting places. The record l
think shows that those four voting places
were established as follows: Two in the
Tenth Ward, one in the Ninth, and one
additional in the Seventh Ward.
On the 9th of March, 1868, the Legis-
lature authorized the establishment Of
seven other voting places. These places
we're established as follows One addi-
tional in the LIST, I'd, Sd, 4th, 9Th, 9th and
9Th wards, making with those already es-
tablished two for each of the ten wards.
At different times some of these places
were changed, but never increased over
the number allowed by law At the time
these two wards were brought into the
city there were but eight wards and eight
voting places By subsequent acts twelve
additional voting places were added
eight of these were given to the old
wards, and the four remaining given to
the two new wards, making two voting
places for each of the ten wards.
Upon this ground do not think the
Commissioner of Registration could have
rejected the vote from the Tenth Ward,
even if he had possessed the power.
/ must give Judgment for Curry.
R. J. MORGAN, Chancellor.
After the decision had been read by
the Chancellor, Judge Brown gave no
tice of appeal. The question of appeal,
upon the the incidental question Of the
amount of bond required, will be heard