The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1875-10-16


but one vote had been cast In the whole city.
This, however is not case where there rs
only partial vote For special election il
was Il very full vote.
One word about these rephcalons 10 the
Sd plea. 1t was said in the opening of my
brother Fences speech, that this election
was carried by fraud, ballot stuiiing ana IT.
regularity in having no poll list, &c. Allow
me To say this judgment stands en- no such
state OF facts. There is not one word OF lnat
kind contained anywhere in anything 'ha'
forms the basis Of this Judgments not one
word Every word on that subject is con
tanned in the 4,h, 9Th and 9Th repications 10
the third plea These replications the criminal
court held to be bad and sustained u de.
murrer to them. Thejudgment in the criminal
court does not stand on any such facts. The
Judgment we ask to reverse stands on no such
allegation as tl.at lie says, however, they
have assigned cross errors. BE 1t 50. The
demurrers TO each of these replications We're
sustained properly Why? FIRST because
such matter cannot be Investigated Ia pre-
ceedipg by quo warranto You cannot in
quo warrantO enquire whether there has
been fraud practiced in the conducting of
the election, nor can you enquire whether the
result declared is the result that should have
been declared.
If the election has been one that is regu.
larly called, if 1t is not void for want OF some
essential of the election, and the result has
been placed on record, that is conclusive III
this proceeding. An election may be con-
tested for fraud or irregularities which change
the result. The result cannot be attacked
collalerally merely on such grounds.
If understand the functions and nature
of this proceeding by information, it cannot
be used FOR the purposes Of c0n;estihg an
election.
Our statute has provided "a mode of con
testing all elections, and the mode OF
contestlng these elections specifically in so
many words.
The statuary remedy is exclusive in its ma
ture, and an election can be contested in no
other way where the statute prescribes the
mode Where there has been an election held
and 4 result ascertalnel in a proceeding OF
this kind, where the result of that election
comes in collateraily, and Is not the subject
matter of the action at all, where the result
merely becomes material as an incident, II Is
like any other finding or judgment, ii is final
and conclusive and can not be attacked col
laterally don't want to be misunderstood.
1 don't mean to say in this case they cannot
come IN and say this election 10 void on the
ground, if you please, that minority repre-.
sention is not submitted on the ground, if
you please, that the election was not properly
called or on the ground, if you please that
there was not Il sufficient number of peti
TONERS to authorize the action Anything
may be set up and proved in this case to show
that the election was void, or that there was
no election. But nothing can be done for
the purpose of reviewing the proceedings of
the election. This can only be done in pro
ceedng contesting to the election. That SUBJ
ject is covered by the proceeding by con-
testing an election. If this election is
held on sufficient notice, at the right
places and is not void, the decision is
conclusive and cannot be attacked collateral
ly, and they cannot be heard in this proceed
ing 70 say that any irregularities were had,
because if they insist upon that they must
proceed under the statute for contesting the
election.
If this be not 80, we say secondly, their
replicatiOns are bad upon another ground.
This court has held that an election prop.
erly called by law or otherwise will not be
set aside even by conlesting the cleo
ton by reason of irregplarity, by reason OF
fraud, or ballot stuffing, or by reason of cot
ing dogs, unless it be shown by the plea or
replication that these facts did produce re-
sulr different from what the rightful votes a,
the election would have produced, excluding
the fraudulent and irregular matters. 1t is
no where alleged in these replications Except
argumentatively) that the result of this cleo
ton was changed by these wicked and irreg'
ular practices.
They plead evidence, not ultimate fact.
The replications are argumentatlve and in
conclusive argument at that They do not
come in and plead that by reason of
the frauds and wrongs alleged this cleo
ton was made to appear to be for the
charter when in fact a majority of the votes
legally cast were the other way. They don't
allege any such thing. The REALTORS have
sedulously avoided making that allegation.
Such an issue would have been promptly &C
ceptcd by the city. 1t is said by the replica
lions there were frauds Perhaps there were.
1t is said there were also frauds on the other
side which tended IN defeat the new charter
And nc doubt if we had come to the proof
we would have had TO rebut their proofs on
that question, bnt they cannot aver mere
proofs. That Is l.leading evidence, pleading
circumstances an not controlling facts, and
therefore the cart below held that these
replicatlons We" baI, and threw them out of
the case. l vn,i.d not have commented on
them at all if J. mad not been attempted to
bring them in hire to create kind of stencil
by which they ii ped we would be prejudiced.
There is no rrnsnh in the record why the
court should con,i Ter these replicatlons at
all They are oui Of the case.
The Sd plea we tried to abandon in the
court below and we do here. We ask moth
ing by the Sd plea, and therefore it Is unnec-
essary 1t should be examined.