The Jackson standard. [volume] (Jackson C.H., Ohio) 1847-1888, 1886-01-07


and submitted.
As this is in answer to certain re-
fiections on the majority, | do not
care to do more than to say that in
my judgment is vested large discre-
tion as to achat time the hearing
should be fixed.
The case of the State ex rel. Hoadly
VS.. Dalton should in view of its i'm
portance and the limited time to make
the canvass, have been first heard.
| disagreed with the majority in re-
quiring the defeddant in this case to
go to trial in so short a time, and in
advance of the Gorernor's case to
compel Dalton to send up abstract
No. 2, so the canvass might be made
in time. [ do not wish to say more
on this subject, except to say that this
action was without any reason appar-
ent upon the record.
The motion to strike out certain
specific allegations contained in the
amended petition, showing that GER
tain election returns were not legal
returns, and therefore should not be
counted, the demurrer for the same
petition. and the motion to quash the
writ made by the defend
ant in mandamus, were each based
upon the same ground, namely. that
the Canyassing Board is the sole judge
of what are the legal returns, and the
Circuit Court have no power or juris-
diction to control such Board as to
their duty in the premises.
The overriding of each of these mo-
tions and the demurrer were excepted
to by the defendants, plaintiffs in er-
ror here. The claim is that each
house of the General Assembly is the
Judge of the election returns and
qualification of its members, and the
statute prescribing the mode of max
ing such contest furnishes a plain
and adequate remedy at law for all ir.
reguiarities, whether occurring by
fraud, or misconduct, or mistake Of
the Board, or Of the judges of the
election. On the other hand, relators
conceded that the Board could not &C
behind the face Of the properly au-
thenticated returns, nor hear evidence
dliunde, nor take cognizance of irreg-
ularities or frauds occurring at tht
election, not apparent from the inspec-
tion of the returns themselves.
lie such returns are genuine, and are
in due form and properly authenticat-
ed, it is the duty Of the Board to can
vass the same.
The first question [ propose to con-
slider is whether the Court could con-
trcl the Board in its action, where by
inspection Of the face Of the returns
they appeared not to be legal return:
duly authenticated, or where on theil
face fraud and forgery were apparent
to an ordinary mind, imbued with the
desire to do right, it would seem there
could be but one answer to this ques.
tion. But it is asserted with unusual
vigor and zeal that if these return:
come to the Clerk under seal from one
of the judges of the election, it must
be counted, though it is evident from
a bare inspection Of them that they
are false, forged and fraudulent, they
must be canvassed, and that the Couri
is powerless to prevent it, though the
Board knows they are stained with
crime, and although it is fraud upor
every honest voter.
This is monstrous doctrine; i
subverts the dearest rights of the citi
izen by destroying all the power Of al,
honest vote; it permits the Clerk. tt
whom is given the selection of the jus.
tices, to assist him in making the can.
vass. to exercise absolute control. Thi.
Board may be actuated by "A partisan
desire to count in their friends. Yei
we are told that the only remedy is by
contest.
In political organizations, where
if the contest is successful, it woulc
change the complexion of the body
it has seldom, if ever, been that sucl
a contest has been successful when the
control of the body is thereby changed
It is fundamental principle. tha,
every citizen and every public officer
however high bis grade, is amenabIt
to Judicial control. 1t was but few
years since that the Governor of this
grt at State was Sheriff of an adjoining
county and compelled to stand at tn.
bar of the Court. and plead as IL com.
mon criminal. He did rot claim no,
could he claim exemption from ODE
dience to the mandates of the Court
Less t:lan five years ago this Court is.
sued its alternative writ of mandamu>
against the Governor of Ohio, and the
Secretary Of State, acting as a Can
vassing Board, commanding them tc
make the canvass for a certain Office
in a particular way or show cause why
a peremptory mandamus should not
issue. Neither the Governor of the
State, nor the Secretary of State. non
the Attorney General, who represent
ed them in Court, presumed to claim
that these high officers were exempt
from the control Of this Court because
they were members of a Canvassing
Board. State ex rel. Campbell vs..
Foster, 3S Ohio St. 500.
1t has been reserved for these mod
ern times, to establish as 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 imperial will, and grant
certificates of election, and the courts
are powerless to direct him.
There is no remedy at law for can
didate who is deprived Of his certifi-
cate of election. His right to this
certificate, if he be legally elected, is
clear. A contest is to try the title to
the office. Mandamus is the remedy
to determine the title to the certificate
The certificate makes a prima tfacie
case. 1t IS to be- gwen to that cardi-
date shown to he elected by canvass
IF the legal returns.
On contest, evidence aliunde is ad-
mlssible to show who in fact is duly
elected.
In support of the claim made that a
board is. while making
or after it has been made,
absolute in its power, and can not be
controlled by the court, several Ohio
cases are cited. Let US examine them.