The Aberdeen examiner. [volume] (Aberdeen, Miss.) 1866-current, 1884-06-05

W w Will Iuc COuHlllO vi tndI DOH.
If he saw ballot-box stuf1ing or mis-
count it could then be proven by
him, otherwise not. He had no Off
cial character except to preserve the
peace.
TO-, 1t was entirely competent to
sustain the returns as made by the
testimony of the canvassers who made
them. 1t is always competent to
sustain official acts by the testimony
of those making them.
1t is believed that we have thus
indicated what should have been the
rulings on all the questions which
must arise on another trial in the
court below. We append a few
words as to how this case should be
tried.
The petition is far more volumi-
nous than necessary. 1t sets forth
all the alleged errors committed. 1t
only needed an allegation that peti-
toner received a majority of the
legal votes cast. This it contains in
the closing paragraphs. All else
was proof. The petition may yet be
amended as counsel may be advised.
1t starts with the legal presumption
that the certificate has been given to
the right man and this presumption
continues throughout the whole trial
except where overthrown by testi-
mony. Unless therefore on the whole
trial the contestant affirmatively
shows that he has received majori-
ty or plurality of the legal votes cast,
he can never succeed.
In this case he can first rely upon
the majority Gf he has one) cast for
him at the four undisputed boxes of
Aberdeen, S. Aberdeen, Athens and
Darricotts. He may attack the other
boxes in any way he chooses and if
he does so for fraud, he must affirm
atively show the fraud. This he may
do by any means appropriate to that
issue, and he overthrows the legal
presumption against him when he
shows the actual participation in any
unfair and fraudulent practice Of
those who handled the votes or re-
turned the count at that box; and in
so doing he may adopt his own order
of proof. No mere error omission or
irregularity on the part of the re-
turning officers can result in setting
aside the certificate. Any practice
which may be thought purposely to
have been resorted to for influencing
the result will have that effect if
those who made the return knew of
or sanctioned it.
Speaking for myself alone and not
for the court, | think that the prino
tacja presumption OF correctness IN
the certificate fails whenever it is
aflirmatively shown that (as is alleged
i'll this case) one side only partioipa
ted in making out the returns and
the other side was excluded from
conducting the election and making
the count. In such case to speak
more accurately / think the pri0ta
Jacie presumption Of correctness
never attackes. We all think that
it fails where it is shown that there
was any intentional wrong on the
part of those who made the count.
Whenever by any means this prjmd
tacie presumption is overthrown
either side may show what was the
true state Of the vote at that box,
which is never to be entirely thrown
out, if it can by any process be dis
covered what that true state was.
Where this is wholly impossible, and
in this event only can the entire box
be rejected. Going through the
whole county in this way the con-
testant can only have verdict when
he shows ailirmatively that he had "a
majority in the entire county Of the
legal votes cast. Unless he does
this, verdict must go for the con-
testee. Our whole election laws con-
template fairness, justice and per-
feet ascertainment Of the will of the
voters. This inquiry should always
be the guiding star of the inyestiga-
ton and nothing save positive re-
quirement of the statutes like that as
to excluding marked ballots Gllus-
trated in Oglesby V. Sigman, SO
Nliss) should be allowed to delea: it
if that result can be avoided.
We have examined, without citing,
all the authorities relied on. They
will be found in the briefs of counsel.
REVERSED AND REMANDED.