Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-03-19


second precinct of the Second ward and the
third precinct of the Fourth ward, were pre-
cincts in which the ballots were numbered,
and they have been already disposed of in
our finding upon that question. In the other
precinct, the first precinct of the First ward,
there was conflict of testimony as to what
the vote really was ; but the burden of proof
establishes to our satisfaction that in this
precinct Washburn received 40 votes and
Donnelly 1872 and although this was not
established by the best evidence we are will
ling to admit the vote as such.
In the township of Leaf Valley, Douglas
county, Up. 27O), Mr.. Donnelly received all
the votes cast for Congressman, to wit, 81
votes; they were not returned or counted for
him. These votes are to be added to the re-
spective candidates.
IsANTI COUNTY.
The statutes of Minnesota, {seo. 10, p. So,
revision of 1867 provide that the county
canvassing board of each county shall con-
sist of the county auditor and two justices
case of Isanti county, the canvass was made,
the votes counted, and the return made by
the county auditor, one justice of the peace,
oAAu UtC JUttyO VI pJOOutO VI UGO COUftCys \SCO
p. g., printed test.) It is true that sub. 8,
Mimi, provides that swords purporting to
lie officers or other persons, shall be con-
strued as giving such authority to majority
of such persons or officers" If the county
auditor had selected two justices of the
peace, and one had failed to attend, then the
oinrifv1 r,oiohf undor fhic 1ouu no
gone on and acted; but in the case of Isanti
justices of the peace as the law required; the
board of canvassers, therefore, was never con-
stituted as required by lew, and never hav-
neither majority nor minority of it.
In the contested election case of Howard
vs.. Cooper, of Michigan, Thirtysixth Con-
gress, Tsee Contested Elections 1864-'65, p.
1921, the Committee of Elections say:
Your committee have rejected the vote of the
township of Van Buren,. The law requires that
the board of inspectors shall be constituted of
three persons in number. The proof is clear
that there were but two. And as there was no
board of inspectors known to the law, your
committee see no way by which any legal effect
can be given to the returned vote. They have
therefore deducted it.
In this case it was shown that there was
statute of the State of Michigan precisely the
same as that just quoted from Minnesota,
giving majority of board the power to act
for the whole board; but the committee did
not consider that it was sufficient to permit
them to receive and count the return.
But, if we will suppose that the board of
county canvassers of Isanti county had been
duly constituted as required by law, and that
majority had the power to act for the whole
board, nevertheless, the return could not be
received, for it appears upon its face that a
third party, not a member of the board;
stranger, not qualified to act; an usurper
without color of authority, intruded himself
into the deliberations of the board and acted
as one of them, and IN all cases where the
county auditor and the justice of the peace
differed in opinion he gave the casting vote,
and thus decided the action of the board.
The statutes of Minnesota show that the
Judge of probate has none of the functions of
justice of the peace, and the constitution
of the State (sec. Z, Art. VIZ provides that
probate court 'shall have no other jurisdic
ton, except the estates of deceased persons
and persons under guardianship" There
is no testimony to show that this Judge of
probate was at the same time a justice of
the peace, and if he had been his exercise of
the Office of justice of the peace would have
been incompatible with the spirit of the con-
stitution of the State.
In the case of Delano vs.. Morgan, Ohio,
r. Bartlett, p. I'll it seems that person
acted as one of the judges of election who
was believed to have been deserter, but had
never been convicted of the crime. The
committee of elections say and the House
sustained the report:
Gin the case of Howard vs.. Cooper Cont.
Elect 1S64-'65, p. 1922, the returns of Van
Buren, township were rejected because there
we're only two judges. If return is I'M
trustworthy when one Of the judges is alb
sent, it is certainly more so if the vacancy is
filled by person disqualified to act. Two
competent judges are certainly more reliable,
when acting by themselves, than when ad-
vised. directed, and in part overruled by a
third, pronounced by the law unfit for the
trust"
In Morgan vs.. Delano the disqualification
of this third party was inferential; for as he
had never been convicted of desertion the
presumption of law was that he was not
guilty; but in the case of the canvassing
board of Isanti county the disqualification
of the judge of probate was statutory, abso-
lutte, and appears ON the face of the return.
If the objection to this return was purely
technical We might hesitate to reject it; but
it appears that the bona .fdes of the vote
were put in issue by the pleadings.
The contestant, Donnelly, in his notice of
contest, Art. VIII, deslared: "That the votes
alleged to have been cast for you, Wsshburn,
at said election in the county of Isanti, in
said district, were not cast or counted for
you, or returned or canvassed as provided
by law" There are here four averments: III
that the votes we're not cast; ri that they
we're not counted [by the precinct oficers];
3 that they were not returned as provided
by law; that they were not canvassed as
provided by law. The contestant having
established, by the return itself, the truth of
the last two charges, it became the duty of
the sitting member to prove, by counting
of the votes in the ballot boxes, that the
votes were actually cast as claimed by him:
and by proper testimony that they were duly
counted by the precinct officers. As he has
failed to do this, the presumption of law is
that he was unable to do it. There was no
obligation upon the part of the contestant
to prove or disprove votes that had no exist
ence before the committee in any legal re-
turn, while Mr.. Washburn we'll knew that
the fact of any such vote being cast in the
county was denied by contestant and that
the burden of proof was on him to prove it.
The committee has no way to ascertain the
votes cast except by the official return, and,
where this is manifestly void, by testimony
showing what the vote really was.
POLK AND KITTsoN COUNTIES.
The return upon which the votes of these
counties is based is extremely imperfect. It
is as follows, p. 81:
Abstract of votes cast in the county of Polk &
Kittson and State of Minnesota, at the gen.
eral election held in the several townships
and wards of said county on the first Tuesday
after the first Monday, being the 5th day of
November A. D. eighteen hundred and sey-