Year: 1869

Frauds vitiate all proceedings and may nullify the
returns made by election officers. prohibition aC-
GSmpanied by penalty Is not 70 be reg regarded as
shall be allowed 70 vote whose name is not upon the
list Of taxabes and accompanying this prohibition


clause is directory when the provision carries
words of direction, and no more, but not when IL
carries words of absolute prohibition. When we
reflect how national election may be jeOpardized
by violation OF this statute, say that its disre-
gard by the election Officers is deserving of the
strongest condemnation.


Now, as 10 the positions assumed by the defense.
They ask to cast out the vote OF the Second ana
Tenth Of the First ward and the Tenth of the Nine
teenth. The proofs Of fraud and VIOLENCE are
very strong, false presentations being allowed;
murderous attacks made upon voters, ana
the unlawful arrest and Imprisonment OF
unoffending citizens. The contestants answer
this by saying that the statements of witnesses VINO
attempt to prove these allegation were inconsistent,
and the returns would show that the vote lOr the
respondents here was heavier than ever before, BuC
this is not the proper test the purity of the ballot
and the protection OF the citizen are the cei obects


We freely apply in favor Of the respondents the
rule invoked against them and cast out these pre-
cincts. The respondents also attack the Fourth OF
the Seventh, the Eighth and Ninth OF tue TENTH


the Third OF the Eighteenth, and the Seventh or the
Third but there s nothing in the proof to convince
us that they should be rejected


The rejection Of the Tenth OF the Nmeteenth


ward is strongly urged by the respondents. This


IL the division where the dispute arose con-
cerning the appointment OF Judge OF new diVl-


sion by the judge OF an old one, ana the subsequent


revocation Of this appointment and refusal TO
comply with the revocation. No fraud, however is
complained Of and no violence except in TWO cases,
and those confined to the immediate Victims and we


do not consider the dispute between the Judges sui
hCient ground for the rejection OF the DIVISION
Again-the respondents ask us 10 throw out 39
other divisions because of the refusal TO receive
votes upon Supreme Court naturalization papers.


There is proof before us that the papers rejected
were genuine or for whom these votes if received,


would have been cast and they could not be given to


either party After further review, Judge Brewster
! summed up the result as follOws:-
FoXs majority for Mayor, IS.
Gibbons majority for District Attorney, G.
All the other contestants elected by large MAORI
| ties.


| Then we have the following persons in otlice--
| FoX-Mayor.


| Gibbons-District Attorney.
Petz-Receiver OF Taxes.
HancOck-City Controller
Worrell-City Solicitor.


Observation-Disclosures Of the Common Pleas.
| NCCuen-City Commissioner.
Judge LudIOw's Dissent.


In his dissenting opinion Judge Ludlow dwelt upor
| the grave nature Of the responsibility resting upor


the Court in deciding such case as this, affecting
| in its most vital point lie gav'
| a most elaborate dissertation upon thu
| law OF the subject, maintaining strongly tina


this Court had no right to cast out whole division


thus deprivng the legal voter OF his right TO have hi


vote counted, but cOntending that the proper remed!


in of fraud to purge the count, thus throw


ing out the fraudulent and giving effect to the lega
vote.


Notice was given that the case OF the District At
teTney would be taken before the Supreme Cour
| upon a writ of certiOrari