The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1884-03-01

there was no other candidate by that
name are facts clearly established by
the testimony OF w. 3, Potts, I'D. II.
Moore and q number OF other witnesses.
These facts are disputed by no wltnesa-
es, and are admitted by the answer OF
conteatee, II seems TO us they must be
regarded as facts OF general notOriely,
and as well known 10 our Governor and
Secretary OF State, as TO any other intel
ligent citizen of the state, who has ta'
ken any interest In public affairs. ,
II seems 10 ua matters such ~ these,
frequently and generally spoken OF by
the press OF the state during the cam
paign OF the state, should be regarded as
matters OF general aud public notoriety.
When we read the Official retnrnD In
the light OF the foregoing facta OF pub.
lic nOtOrlety, II seems 10 us clear that
the 2 votes certified TO j, II. Wallace, the
8 votes for Mai. Wallace, the votes for
Jonathan Wallace, the votes for Wal
lace, the vote for Major Wallace and
the 4 votes for John II. Wallace, should
have been counted for contestant, ~
clearly falling within the rule. II they
had been 30 counted his majority would
have been l2 votes. We further claim
II was reasonably certain that the two
votes certified for W, II. Wallace and the
one vote for w. w. Wallace were inten.
ded for contestant, and the returns, rea-
aOnably aud fairly understood, gave
them TO him; and that they should have
been counted for him, thus making his
majority 10 votes; hut for some reason or
other Governor Foster and Secretary
Townsend rejected the same and gave
contested "A certificate OF eloctl0li 10
which no was In no wise entitled, and
by means Of which he IL now iilling an
office m the Representative OF u district
that repudlated him nj the p0lle.
Whatever the rule may DO In other
states, We think the decision OF our Sn-
preme Court above referred 10, shows
the law Of Ohio TO DO such that the Gov.
ernOf and Secretary OF State should have
counted the % votes aforesaid, or NJ least
most OF them, for the contestant, and the
certificate OF election should have been
given contestant, But, ~ the matter IL
out OF the jurisdiction OF the board OF
canyassers. we will not further consider
their action In the matter. The case IL
now before u tribunal which has full
power TO hear aud determine the Ques-
tiOna NJ issue between the parties In the
light Of all the testimony which, by the
rules OF law, may properly be coneid'
cred.
We are not now confined 10 the cleo
tl0n returns M made aud certified by
the officers, nor limited 10 the reading
OF those In the light OF public n0t0rlety,
We claim that before thia tribunal we
are entitled 10 have every one OF the %
votes before mentioned counted for the
contestant. We base thla claim upon
the following facts, all OF which are o..
tabllshed clearly by the testimony In the
case;
1. Jonathan IL. Wallace was u eau.
dldate for the Office OF Representative TO
Congress at aaid election. Ile was reg
ulafly nominated by the Democratic
party ata public convention OF that
party.
2. He canyassed the district for said
Office, and made public speeches ~ such
candidate.
8. lle was publicly spoken OF by the
press throughout the district and the
state IN u candidate for the Office.
4. He was widely and generally
known throughout the district, and 81.
pecially In C0lumbiana county, from
which nearly all these 90 votes came by
tho title OF Maj. Wallace, by his initials
j. II. Wallace, and simply hs Wallace.
B. There was no other candidate bear.
Ing the namo Wallace running for that
Office at said election.
0, Nobody ever heard OF and no testi.
m0ny In the case mentions any other
candidate for the Office bearing the
name Wallace.
All the foregoing propositions are es'
tabliehed by u great array OF witnesses
called by the contestant, and there IA 40
testimony In the case bearing against
these propositions nor any one OF them
Thoy all stand fully aud concluslyely
established by the testimony taken In
this casa.
Asto the competency Of this testimony
We quote from C00ley'e C0nati. Llm,, y.
40, ath cd, the following rule:
I'VE think evidence OF such facts as
may be called the circumstances sur.
the candidates brought forward by the
nominating conventions; whether other
pcrsOna OF the same name resided In the
dlatrict from which the officer was 10 bo
chosen and ifeo, whether they were OIL
igible or had been Dameo for the olilce."
That evidence may be given OF
tho circumstances surrounding the cleo.
tlon and the different candidates, and
all the facts alluded 10 In the foregoing
propositions may properly be given In
evidence, We cite tho following addi-
tlonal authorities: Attorney General
w Ely, 4Wie., a28i People w Ferguson,
y Cowen, l02; State Va Gatee, % Conn,
b33; McCiaty on Elections, p. $3.50, and
caees there cited, Phelps w Goldlhwait,
10 VIA, I46; State w Elwood. 12 Wis,
Dol; II Central Law journal, D. 30l.
The foregoing authorities clearly on.
tablihh tho rule OF law ae wo claim II
In contested election cases before tho
courts and also In Legislative bodies.
There seems To BIO little or no conflict
Of authority on this matter. The only
caeea we find 10 the contrary are tho
early decisions Of tho Supreme Court OF
Michigan. aud these cases, Cody G. j.,
was IN favor OF departing from In the
case OF People w Clcotte, 10th Mich,
2S3, and In his dissenting opinion after
reviewing the whole subject, used the
following language: '. 49,
II regret that my brethren do still
follow the case OF People W 'rladale, mot.
witbetaDding the majority arc Of the
opinion that II In uneound In principle.
The case has no support, 40 | think, ei.
ther In tho authorities or In tho annl0.
Rios OF the law, and no court outside
this state has ever followed H."
Wo therefore conclude II waa perfectly
competent for contestant 10 establish by
extrlnsic proof, each and all OF the fore.
going propositions.
These propositions being establIebed
by the proof, what Ia tho law applicable
10 this state Of factsp
We have In this casa tho 20 votes
properly certified up 10 The state can.
ynapInp board for "Wallnce." with tho