not less than two hundred and fifty dollars nor more than one thousand dollars. (102 v. 189.) and clerks separate or SECTION 5091. From the time the ballot box is opened Period during and the count of votes begun, until the votes are counted which judges and the returns are made out, signed and certified, as herein shall not required, and delivered to the judges selected for such duty leave polling for transmission, as required in the next chapter, the judges place! and clerks of elections in each precinct shall not separate, nor shall a judge or clerk leave the polling place except from unavoidable necessity. For a violation of this section, a judge or clerk shall forfeit and pay not less than fifty dollars nor more than one hundred dollars. (97 v. 236 § 25.) SECTION 5092. No person, being a candidate for an office to be filled at an election, other than for committeeman or delegate or alternate to any convention, shall serve as deputy state supervisor or clerk thereof, or as a judge or clerk of elections, in any precinct at such election. A person serving as deputy state supervisor or clerk thercof, judge or clerk of elections contrary to this section shall be ineligible to any office to which he may be elected at such election. (103 v. 496.) NOTE: A deputy state supervisor may not be a candidate for member of the board of education. Atty. Gen. 8-17-09. While a judge or clerk of elections can not be a candidate, where such a person has received a sufficient number of votes by electors writing his name on the ballot for a particular office, and such votes are in comformity to law in all other respects, such person should be declared elected to that office. Election officer cannot be cept for comdelegate. candidate ex mitteeman or Making and transmission of returns. Opening returns; ab stracts to be made. ors of real property. Canvass of vote in school elections. How result determined in certain cases. Number of votes necessary when statute is silent. Want of form shall not invalidate poll books. 5123-1. Return of votes cast for and against proposed constitutional amendments. 5123-2. Returns certified to state supervisor of elections within ten days; opening and canvassing returns. SECTION 5093. The judges and clerks in each precinct. shall make out the returns of the election in duplicate, sign and certify one of the poll books and tally sheets thereof, and immediately transmit it to the deputy state supervisors by the presiding judge or such other judge as he may designate. The other poll book and tally sheets signed and certified in like manner shall be forthwith deposited with the clerk of the township or the clerk or auditor of the municipal corporation, as the case may require, by another judge designated by the presiding judge, and shall be preserved one year from the date of such election. Such returns shall be securely sealed in an envelope and addressed transversely upon the upper end thereof to the proper officer with whom they are to be deposited, with the designation of the township, precinct and county. In registration cities, such delivery shall be made as provided in the chapter relating to registration. (97 v. 236 § 25.) SEC. 5094. Within five days after the election, or sooner in case the returns are made, the board of deputy state supervisors of the county shall open the several returns made to it and make abstracts of the votes in the following manner: 1. Upon a single sheet an abstract of votes for governor, lieutenant governor, secretary of state, auditor of state, treasurer of state and attorney general. 2. Upon another sheet an abstract of votes for governor, lieutenant governor, secretary of state, auditor of state, treasurer of state, attorney general, chief justice of the supreme court, judge of the supreme court, United States senator and for representatives to congress. 3. Upon another sheet an abstract of votes for governor, lieutenant governor, secretary of state, auditor of state, treasurer of state, attorney general, chief justice of the supreme court, judge of the supreme court, judge of the court of appeals, judge of the common pleas court, United States senator, representatives to congress, senators and representatives to the general assembly, judge of the probate court, clerk of the common pleas court, sheriff, county auditor, county commissioner, county treasurer, county recorder, county surveyor, prosecuting attorney and coroner. 4. And upon another sheet an abstract of votes for each elector of president and vice president of the United States. (104 V. II.) NOTE: As to powers of an election board after canvass has been completed, see State ex rel. v. Donnewirth, 21 O. S. 216. Under the thirty-fourth section of the election law (S. and C. 536) where the poll-books upon their face are substantially correct, the justices and clerk, in making an abstract of votes, are not authorized to reject such poll-books on account of fraud in the election. Phelps v. Schroeder, 26 O. S. 549. In an action to enjoin the clerk of the court of common pleas of Wood county from recording the abstract of the vote in said county upon the question of the removal of the county seat, held that allegations of fraud and illegality in conducting the election, constitute no sufficient ground for such injunction. Wrongs of such a nature can be inquired into and redressed, only by means of a contest of the election, pursuant to the provisions of the act of April 15, 1857. Peck v. Weddell, 17 O. S. 271. An action in mandamus to compel the board to make, certify, and transmit the proper officers as required by law, the several abstracts of the votes shown by the tally sheets returned from the various election precincts of the county, may be instituted on the relation of any elector of the county. State Ex rel. v. Tanzey et al., 49 O. S. 656. of abstracts. SECTION 5095. The board of deputy state supervisors Making and shall make and certify duplicate copies of abstract number transmission one, and inclose and seal them and endorse on the envelope "Certificate of the votes for governor, lieutenant governor, secretary of state, auditor of state, treasurer of state and attorney general", either or all as the case may be, ant the name of the county in which the votes were given, and shall direct and forward one copy thereof by mail to the president of the senate at Columbus, and deliver the other copy to a member of the general assembly who shall deliver it to the president of the senate at Columbus. The board also shall forthwith make, certify, seal and so endorse copies of abstracts numbers two and three and transmit them by mail to the secretary of state at Columbus. Secretary of state shall canvass re turns for presidential electors; certificate of election. Canvass of returns of abstract number two. When other returns may be used in canvass. The board shall make and certify duplicate copies of abstract number four, one of which the board shall inclose, seal, and endorse on the envelope, "Certificate of votes for electors of president and vice president of the United States", adding the name of the county, and shall mail it to the secretary of state at Columbus. The other copy shall be filed in the office of the board. (R. S. Sec. 2983.) SECTION 5096. When the returns of an election of electors of president and vice president of the United States are received from all the counties, the secretary of state, in the presence of the governor, auditor of state, and such other state officers as choose to attend, shall open the returns of abstract number four, and, as they are opened, cause them to be read aloud, and shall make an abstract, showing the number of votes given for each person for such office. If two or more such persons receive an equal number of votes, the secretary of state, in the presence of such state officers, shall determine by lot which of such persons is duly elected. The governor shall make and transmit by mail to the persons having the highest number of votes, or whose election was so determined by lot, certificates of their election to the office of elector of president and vice president of the United States, and shall cause notice of their election to be published in three newspapers, published at Columbus, two of which shall be of opposite politics. (R. S. Sec. 2970.) SEC. 5097. Within ten days after the first day of December next after such election, the governor and secretary of state, in the office of the secretary of state, in the presence of the auditor of state and attorney general, shall open the returns of abstract number two, made to the secretary of state for judge of the supreme court, for United States senator and representatives to congress from each congressional district. If it appears that returns have been received from all the counties in accordance with the provisions of this chapter, the governor and secretary of state forthwith shall proceed to ascertain the number of votes given for the different persons for such offices. (104 v. 11.) NOTE: Where the governor and secretary of state, under Section 2986 of the Revised Statutes, in canvassing the returns of votes from a congressional district, aggregate the votes returned from one county for H. L. Morey with the votes returned from the other counties for Henry L. Morey, treating the names as designating the same person, the mandamus will not be awarded, requiring the votes thus aggregated to be counted as given for different persons in the absence of an averment that the votes were intended for different persons. State Ex rel. v. Foster, 38 O. S. 599. SECTION 5098. If such returns have not been received from all the counties, and returns of abstract number three have been received by the secretary of state from the delinquent counties, as herein provided, the governor and secretary of state shall be governed, so far as relates to such delinquent counties, by the last mentioned abstract. The persons having the highest number of votes for the respective offices named in the preceding section shall be considered duly elected. The secretary of state may open the returns of abstract number three as they are severally received by him. (R. S. Sec. 2987.) dent of sen SECTION 5099. During the first week of the session of When presithe general assembly, the president of the senate shall open ate shall open and publish the abstracts of votes by him received, in con- abstract. formity to the third section of the third article of the constitution of the state. If the abstract from any county has not been received by him, recourse shall be had to abstracts number two or three in the office of the secretary of state. (R. S. Sec. 2984.) SECTION 5100. If the general assembly is not in session previous to the second Monday in January next after an election for any or all of the executive officers of the state, the governor and secretary of state, within five days after the first Monday in January after such election, shall, in the office of the secretary of state, in the presence of at least two of the judges of the supreme court, open the returns of abstract number two made to the secretary of state for such offices. If such returns have not been received from all the counties, recourse shall be had for such delinquent counties to the returns of the abstract number three. They shall forthwith proceed to ascertain the number of votes given for the different persons for the several offices of governor, lieutenant governor, secretary of state, auditor of state, treasurer of state and attorney general, as the case may be. The person having the highest number of votes for each of such offices shall be considered duly elected and shall be so declared by the governor. If it appears from the returns of such abstracts that two or more persons have the highest and an equal number of votes for any of such offices, the governor shall communicate such fact to the general assembly by message at its first session thereafter. (R. S. Sec. 2985.) SECTION 5101. If it appears from the returns of abstracts that two or more persons in any congressional district have the highest and an equal number of votes for representative to congress, the governor and secretary of state shall decide by lot which of such persons is duly elected. The governor shall transmit to each person so elected a certificate of his election, which shall be signed by the governor, sealed with the great seal of the state and countersigned by the secretary of state. (R. S. Sec. 2991.) Who shall canvass vote if general as sembly is not in session. Tie vote for congressman decided by lot. stracts to be SECTION 5102. If the returns of abstracts from all When abthe counties composing a congressional district are not canvassed. made within the time required by law, and if any of them are made after the certificate of election has been forwarded to the person who, according to the abstracts received, has the highest number of votes, the secretary of state, in the presence of the governor, or, if he is absent, |