The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1876-12-21

.iror for a ndidate not having snch Qualiiica'
1ons a re m be thrown away and rejected as hav-
,ng M force or operation in law, The plainhn
can only be entitled TO such votes as were given
after he received the necessary QUALIFICATIONS aii
vo,es in his favor previous being illegal ana
voIdn The report says that the plainllt hau re'
ceiyed the necessary qualifications about tweNe
n clock ON the third day Of the election, ana from
the state Of the polls II 1t had been received vi
the votes taken after that time he cOulu NOT pe
elected. Therefore there was verdict ana Jhus'
ment for the defendants"
The subject has beeh mnch considered III inc
State of Indiana. In the case OF dulicK VS' view,
| IA Indiana Rep, 93) decided In 1850, the court
were unanimous, but the importance OF the ques'
uon led TO lhe exp essiOn OF TWO concurrlhH
on,nIons one by Judge Hanna, the other Dy Judge
Perkins need not say to any Western lawyer
that JudRe Perkins is one of the first lawyers IN
m. West. The points decided are expressed IN tne
syllabus thu: "The Governor may determine
aven AGAINST the decision Of Board OF canvas
sers whether an applicant is entitled to receive
a commission or not where the objection TO his
rivht IN receive Il rests upon the ground that the
constitutional prohibition is interpOsed II the
Governor should ascertain that he has commis'
stoned person who is ineligible 10 the ONCE nc
NAV isspe another commission to the person le'
gally elected thereto. Where majority vi ue
ballots at an election were for person no' eiisi
Bile to the Office under the Constitution IL was heiu
that the ballots cast for such ineligible person
were Intellectual and that the person receiving the
greatest number of legal votes, though not ma,
iority of the ballots, was duly elected ana ehVueu
to the Office. The Mayor OF a city, undei 'he gen
eral law, has jurisdiction as ludlclal oincer
throughout the comfy, and the voters IN lhe cou'
tv are therefore, chargeable with notice oil MS
ineligibillty under the Constitution 10 any once
other than a judicial one during the term ior
which he was elected"
In both the opinions In Gullick VS. New lhe
Judges held as principle of public law, mat
where the ineligibility of candidate arises from
his holding or having held apublic once the peo'
nle within the jurisdiction Of such office are pre-
sumed in law to know-are chargea0le win no
tice of sucb ineligibility. Mr.. Grant, in his work
on Corporations Page 2OS, states the rule inns
"a disqualification patent or notorious az once
causes the votes given for the candldae laborlhg
under it to be thrown away the same would proba
bly be held to be the case where Electors had the
means of knowledge Of the candidates quallhca,
tion. or the contrary, and might have ascertalheu
the facts if they had pleased"
This decision was affirmed in the case OF Car
son vs., McPhetridge 10 Indiana, 327 ana again
in Price vs. Baker Al Indiana, b72 decided IN 1873
tho syllabus of which is as follows; where a
majority of the ballots at an election are gwen 70
a candidate who Is not eligible to the once the
ballots 50 cast are not to be counted for any pur'
nose They cannot elect the ineligible candloa'e
or defeat the election of the opposing candidate
nv showing that he did not receive majority OF
tba votes cast at such election II follows that
tbe eligible candidate will receive an Office, al
thauqh less than majority of the votes are cast
for him" lhe same view was strongly presented
in the dissenting opinion of Chief Justice Ihomp'
son in the case of the Commonwealth VS. Cluly,
56 Penn. Stat. no. quote from page 277; But
confess nv inability to see If tmust be treated as
a preliminary question, why, if the constitutional
disoualifcations of the defendant be established,
tho relator is not entitled to office. He had votes
anogh To elect him. if the votes for the defendant
be regarded as thrown away ms caiiiiot oe
disputed IT seems to me this position cannot be
conlrovered; that If the votes cast for the oelehu
ant would not confer the Office on him, they do
not possess the faculty or capacity OF deprlVlhg
the plaintiff of his election, having as already
said enough votes to elect him. The majority OF
votes operates only in one direction, namely, Vo
elect and by electing defeht any competitor; but
without electing deny that the effect Is TO elect
competing candidate, The thing is not possible
If It were, majority of votes for hcticous can
didate, or one notorously ineligible, would deieat
an eligible candidate The elective franchise can
not operate in such way. II the people DO not
vote generally they consent that those that DO
NAV elect, This Is the rule in all popular elections
If therefore, people do not vote ior Candidates
who can by law exercise the offices voted ior IL
saams to me to follow that they tactitly consent
that those who did vote. for such as are eligible
shall elect on equivalent principles. If such an
excuse were good foranything 1t ought to begood
m render effective the votes ,or the ineligible can
didate and thus give him the office in spite of the
existine disqualification" The same principle
was ppheld in the case of the Commonwealth vs..
Pesd q Ashn cad, 2e4) where the defendant
lRasd, was held to have been elected Treasurer by
the County Board having received but one legal
vote ont oftwenty cast. The other nineteen were
decided to have been void and Intellectual, be-
cause thew were cast UiUd Uoce and the single vote
bv ballot to have controlled the election, that be-
ing the mode prescribed by law.
Tudge Luther s. Cushing, in his work on the
Law and pracice of Legislative Assemblies, Sec
tion III. states the rule thus I'm England, where
a plurality is only necessary to an election, and
where the votes are given orally, 1t is also held
that If the electors have notice of the disquafca-
tion of candidate every vote given for him
a afterward will be thrown away and considered as
not having been given at all. The effect of this
rule is that not only will the election Of disqual
fled person be held void but ifsuch election takes
ulace after notice Of the disqualification is given
to the electors the candidate having the highest
number of votes will be elected This doctrine,
however hard 1t may SEEM is founded in the ia
miljar principle that every man is bound to know
the law with reference to any act which he un'
dertakes to do and consequently that when an
elector Is apprized OF the fact of disqualification
of a candidate and notwithstanding gives his
vote for him, the eleetor takes upon himself the
risk of losing his vote If his construction of the
law turns out to be wrong.
"sEc. 49, In this country itisequally true thai
an election of disqualified person is absolutely
void and in those states where a plurality elects
and where the votes are given orally as in Eng
lond. votes given for a candidate after notice oi
his disqualification are thrown away, and the can
didate having the next highest number of votes
Is elected
"sEc. 17s. In reference to election by ballot, in
which secrecy is the distinguishing feature, and
in which consequently neither the returning Off
GERS nor the electors themselves are supposed Il
know for whom the votes are given until the re
suit is declared, It seems not unreasonable to b.
thrown away In all cases. and the opposing candi
date elected where the electors know, or must bt
presumed to know. the disability and in all case
where there is no such actual or presumed know
edge to hold the whole proceeding merely void
The other opinion is represented bestby the cas-
of the people vs. Clute so New York, 45l, in which
, the elaborate opinion Of the Court by Judge Fol
gel is thus summed up in the syllabus
"A minority Of the whole body ofqualifed cleo
tors may elect to an Office where the majority de-
cline to vote, or where they may vote for one wit
Is Ineligible to the office, knowing Of the disquali
Acation. Notice Of the disqualifying fact, and o
its legal effect, may be given so directly to tn
, voter as 10 charge him with actual knowledge o
, the disqualification, or the dIsqualifying factma.
be so patent or notorious as that his knowledge o
, the ineligibiity may be presumed rs matter 0
law. but not only the fact which disqualifes, bu