Belmont chronicle. [volume] (St. Clairsville, Ohio) 1855-1973, 1885-12-31
HAMILTON COUNTY ELECTION
FRAUDS.
Opinion OF Judge johnson.

majority of the supreme court ln the
Hamilton county election cases:
The opinion of the majority is pre-
faced by a statement touching the pro>
ceedings up to the time the case was ar
gued and submitted.
"As this is in answer TO certain refec-
tions on the majority, L do not care to do
more than to say, that in my judgment
is vested large discretion as to what
time the hearing should be fixed.
The case of the State ex rel. Headly
VS. Dalton should. in view of its import
ance and the limited time to make the
canvass, have been first heard.
81 disagreed with the majority in ret
ouring the defendant in this case to go
to trial in so short time. and in advance
OF the Governors case to compel Dalton
to send up Abstract No. 2, so the cans
vass might be made in time. L do not
wish to say more on this subject except
to say that this action was without reason
apparent upon the record.
"But it is asserted with unusual vigor
and zeal that if these returns come TO
the clerk under seal from one of the
Judges of the election, it must be count
ed, though it is evident from bare in
spection of them that they are false,
forged and fraudulent. they must be
canvassed, and that the court is power
less to prevent it, though the board
knows they are stained with crime, and
although it is fraud upon every honest
voter.
"This is a monstrous doctrine; it SUBJ
verts the dearest rights of the citizen By
destroying all the power of an honest
vote; it permits the clerk, to whom is
given the selection of the justices, to as
sist him in making the canvass, to exer-
else absolute control. This board may
be actuated by partisan desire to count
in their friends. Yet We are told that
tn only remedy is by contest.
! an political organizations, where, if
the contest is successful. it would change
the complexion of the body, it has sell
dom, if ever, been that such a contest
has been successful, when the control
of the body is thereby changed.
at is fundamental principle that
every citizen and every public officer,
however high his grade. is amenable to
Judicial control. 1t was but few years
sine, that the Governor of this great
state was arrested by the sheriff of an
adjoining county and com PEELED to stand
at the bar of the court and plead as a
common criminal. He did not claim nor
could he claim exemption from obedi>
ence to the mandates Of the court. Less
than five years ago this court issued its
alternative writ of mandamus against
the Governor of Ohio and the secretary
of state, acting as q canvassing board,
commanding them to make the canvass
for certain Office in particular way
o show cause why a peremptory mans
damus should net issue. Neither the
Governor of the state, nor the secretary
of state, nor the attorney general, who
represented them in court, presumed to
claim that these high officers were ex-
empt from the control of this court be-
cause they were members of canvass
log board. State ex rel. Campbell VS.
Foster, So Chic Stat, 500.
at has been reserved for these modern
times, to establish as a rule of law, that
there is one man in Hamilton county
who is above all law and all control ;
who can count in or count out at his i'm
perial will. and grant certificates of cleo
ton, and the courts are powerless to
direct him.
There is no remedy at law for can>
didate who is deprived of his certificate
of election. His right to this certificate
if he be legally elected, is clear. A con-
test is to try the title to the office Man
damus is the remedy to determine the
title to the certificate.
''The certificate makes prima facie
case 1t is to be given to that candidate
shown to be elected by a canvass of the
legal returns.
"On contest, evidence aliunde is ad-
missible to show who in fact is duly
elected"
After giving numerous authorities in
support of his dissent and against the
majority decision, Judge Johnson says:
These authorities clearly establish
the proposition that the circuit court
should have overruled the several mot
tions to quash, and the demurrer to the
amended petition, on the ground that it
bad jurisdiction and power to control
the canvassing board and direct it as to
WHIST returns to canvass, where upon
their face it appeared there was fraud
and forgery, or that they were not in due
and regular form.
"This court has been unable to agree
upon this question, being equally divid-
ed (McIlvaine, G. j., absent), hence the
court proceeded to consider the several
specific allegations in the petition relat>
ing to large number of the voting pre-
cincts. AS to these the majority has re-
versed the court below upon each and
every point, on the ground that the can
vassing board could not be controlled by
the court, although as they admit that
there is, upon the face of the returns. or
one of them at least, that of precinct A
of the Fourth ward. strong suspicious of
fraud Still they say the board could