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

March, 1870. The bill does not attack
the validity of the election; indeed, II IS
based upon It's validity and regularity,
and seeks to enforce the rights OF the re-
lator upon that ground, III
| THE next question that arisesis What
are Che duties Of the Commissioner OF
Registration and how are they to be
performed2 By an act Of the, Legisla.
ture the duties Of the Commissioner OF
Registration for holding elections are
the same as that Of Sheriff under the
Code; no more, no less. The Sheriff
holds tho election (Sec 839, Code); in
spectors or judges are appointed by
the County Court (Sec. 64l). The
Sheriff and judges open the box and
count the ballots (Sec 86l). After the
election the Code provides (Sec. 864)
The officer or person holding any cleo
ton Of county officers shall compare the
polls at the courthouse on the first Mon
day after said election, and shall deliver
to each person elected certificate OF
his election.
Sec. 874 is in these words: 1.-THE
person having the highest number Of
votes, including the casting vote, if
necessary, given for any office filled by
the votes of single county, shall be
duly declared elected, and a certificate
of his election shall be made out by the
returning officer Of the county, and de-
livered on demand to the person elect
ed" The Sheriff qualities and gives
bond before the County Court (Sec.
354, 1856, 1861,
Sec. S77. ain all other cases of per-
sons elected by vote of single county
Or district thereof, the returning officer
Of the county shall make return of the
election to the tribunal before whom
the officer is required to qualify"
II is evident, then, that the Commits
sioner of Registration should have made
his returns to the County Court.
The next question that presents itself
is: What was the duty of the returning
officer, Shock? Upon this question there
are great numbers of well adjudicated
cases, and we are not left entirely to our
own Judgment in the matter. In Ten
nessee the returning officer is the Sheriff
or the Commissioner of Registration
at the time of this election. In other
States Board of Canvassers is created,
composed ordinarily of certain desig-
mated officers. In Alabama, in the con-
tingency of contest, the Judge of the
Circuit Court. In all the different States
the duties are about the same.
Are the duties of the returning officer
judicial or ministerial2 Can he go far
Their than merely certifying the result OF
the election2 In one of the best con-
| =. II h., tata ral
VS.. Steers, A Missouri, 223), the Judge
says:
1.-THE question arises by what author
ity did the County Clerk acting as a
mere canvassing officer, assume to de.
termine the legality of the vote in the
Jasper election district If the clerk
has sufficient mathematical ability to
correctly count up the returns, he is per-
fectly qualified for his office, for that is
the only duty devolved upon him by law.
To determine upon the legality of votes
is a judicial proceeding before a court
competent to hear and adjudicate, when
the parties interested can appear and
present their respective claims. To al
low ministerial officer arbitrarily tc
reject returns at his mere caprice OIL
pleasure, is to infringe or destroy the
rights of parties without notice or oppor
tunity to be heard "a thing which the law
abhors and prohibits. Admit the power
and there will be no uniformity One
carivassing officer will reject for one
thing and another for different matter
and no man can tell whether he is legally
elected to an office until he consults the
&c 90 M
such power is subversive of the rights
of the citizen and dangerous and fatal tc
the elective franchise"
The Judge further says; When q
ministerial officer leaves his proper
sphere and attempts to exercise judicia
functions, he is exceeding the limits Of
the law and guilty of usurpation. Ii
this case it would have been more decent
and seemly for the Clerk to have con
fined himself to the discharge of the du
ties pointed out by law, and not have
attempted the exercise of powers which
were never intrusted to him. have
examined quite a number of cases anC
find they all accordA-not an exception
Elk parte Heath, 3 Hill AZ; Thompson VS.
Circuit Judge, 8 Ala. 1888; Attorne!
General VS.. Barston Wis. 567; Stat
VS.. Harrison, 3S Mo. $40 People VS.. Val
Slyck, A Cowen, 297. Quite numbe
besides these have been furnished, hold
ing the same doctrine There is no bet
ter illustration of the principle that {
canvassing officer should be ministerial
and not judicial than the one now under
consideration The corrected tabular
statement made by the commissioner
Shock, shows that he rejected the vote
from the Tenth Ward only so far as the
election of Sheriff was concerned, and
issued to Wright the certificate; and thai
he did not reject the vote as to another
officer whose election depended upon the
same question. He gave the certificate
Of election TO Taft, when Reeves would
have been entitled to it upon the same
hypothesis that gave it to Wright.
The case of the Attorney General VS.
Barston "a Wis, 1922 presents many
strong and striking features. That was
contest as to who was elected Cover
nor. The canvassers returned the de
PENDANT, Barston; the Supreme Cour
I determined that his opponent, Bashford
was elected. The case turned upon the
7 question now before us: Whether the re
turning officers could reject votes
whether their duties were ministerial OIL
judicial.
! The court says: THE question i,
whether the canvass or the election es
tablishes the right Of person to office
1t seems clear that it cannot be the for
4 mer, because by our Constitution anC
laws it is expressly provided that the
election by the qualified voters shall de
termine the question To hold that the
canvassers shall control, would subver
the foundation upon which our govern
ment rests.
Independent Of authority land it il
ample), upon principle it is evident tina