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voted for him. He further says: "The declaration of the proctors cannot affect the substantial right. The right of election appears to be in Lord Hardwicke, and I am very clear that the foundation of the rule should be the election." Justice WILMOT said: "As to the declaration of the proctors, I think it immaterial, for the question depends, not upon that, but upon the real majority of legal votes. This declaration cannot alter or affect that. If they had made a declaration, and even if such their declaration had been contrary to the truth of the fair and real right, the court must have taken up the matter upon the true and real merits; for the right to the office attached in Lord Hardwicke, upon his having a majority of legal votes. If he had a real right, this court ought to give activity to it; and the omission of a declaration of the proctors, or the falsity of it, cannot affect their judgment concerning the legality of the right." Therefore, he adds, "Lord Hardwicke had the majority of legal votes.”

We have seen, from the authorities and cases cited, that the practice is universal, when a scrutiny is instituted to determine the right to an office by legislative bodies, to reject all votes given or cast by persons not duly qualified to vote; and upon such investigation, the declarations of the person casting the vote have been admitted and received as evidence of his qualification or want of qualification. It is hearsay evidence, and yet, upon well-settled and uniform practice, has been allowed. The learned note to 3 McCord's Reports (p. 230), on hearsay evidence, distinctly announces this doctrine. He says, under the 23d head, the declaration of a voter may be given in evidence to set aside the election; as to diminish the poll, by taking an incompetent vote off, or to prove bribery, &c., but they are not admissible on a charge against the candidate for bribery, &c. They are admitted to annul votes, but not to set aside the elec tion by disqualifying the member on account of his bribery, &c. (Citing the case of Milborne Port, 1 Doug. Election Cases, 67; Case of Joel Chester, 1 id., 76; Petersfield Case, 3 id., 6; Worcester Case, 3 id., 129; Shaftsbury Case, 3 id., 150.) This doctrine is referred to with approbation in Cowen & Hill's Notes (vol. 2,

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p. 322), and the learned note in 3 McCord is referred to as the source from which the editor had obtained the remarks and references quoted by him. These writers, and the cases cited by them, distinctly recognize the doctrine that upon a scrutiny had, in reference to the validity of an election, the votes given by unqualified voters may be deducted to diminish the poll by being taken off as incompetent, and the votes so given may be annulled or disregarded or rejected. In the case at bar the disqualification was proven by the voter himself; but these authorities abundantly sustain the position that the declaration of the voter, as to his want of qualification, would have been admissible and legal evidence.

It is urged, however, that the act of the inspectors, in receiving and depositing the ballot, is judicial, and, therefore, cannot be reviewed in this action. It is supposed that the contrary has been satisfactorily shown, and that the universal practice of the courts, in actions or proceedings like the present, where they have inquired into the very right of the case, refutes this assumption. In the case of The People v. Van Slyck (supra), it was urged by the counsel for the defendant that the certificate of the determination of the board of canvassers was conclusive evidence of the election; that it could neither be impeached nor contradicted; that the authority exercised by the board of canvassers was judicial, and that if the Supreme. Court had jurisdiction to review the determination of the board. of canvassers, their reviewing power could only be exercised through the medium of a certiorari, and until reversed in this form, it remains valid and conclusive, and cannot be questioned by an information in the nature of a quo warranto, These views were repudiated by the court, in that case, which held that the act of the canvassers was not judicial, but merely ministerial, and that the trial, in quo warranto, is had upon the right of the party holding the office. This doctrine was promulgated nearly forty years since, in this State, and has, so far as I can ascertain, been acquiesced in and sustained in all cases, and I think it ought not now to be disturbed. In The People v. Ferguson (supra), it was urged that the court

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could not go behind the ballot boxes, that such a principle would be of the most dangerous tendency. Chief Justice SAVAGE most correctly said that the object of an election is that the person receiving the greatest number of votes in his favor shall have the office designated by the electors; that he could not assent to the proposition that you may not look beyond the ballot boxes for testimony, because of the danger of perjury and subornation of perjury. He considered the question fairly before a jury, and to be proved, like all other facts, by the best evidence that the nature of the case admits of.

We are much pressed with the argument that it would be attended with great inconvenience if we permit a party to try his right to an office by showing that his adversary received a greater number of illegal votes than the ascertained majority given him. It is said that in a general. State election the time necessarily occupied in such a trial might consume more than eighty-three years. It is the first time I have ever heard it urged that a party who had a conceded right should not have a remedy to enforce it, because a large consumption of time would take place before his right could be established. If a party has a legal title to an office, it surely can be no legal reason for denying. him the opportunity to establish it, that such process will require the examination of a large number of witnesses and consume much time in the proceeding. Rights of parties cannot be determined on such a basis. The case of Rex v. Cambridge only required the examination into the qualification of one voter, and it was entertained by the Court of King's Bench, but not for that reason. Ex parte Murphy (7 Cow., 153) involved an inquiry as to two illegal votes, and it clearly would have been entertained, if they had influenced the result of the election. The case of The People v. Cook (14 Barb., 259; S. C., 4 Seld., 67) involved an inquiry into the title of the contestant to the office of State Treasurer, and who had been voted for at a general State election. I do not find it was urged in that case that the action ought not to be entertained, on the ground of inconvenience or the great length of time which was

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66

occupied in the investigation. The views expressed by Judge WILLARD, in this court, in the case of The People v. Cook (supra), are sound, and should be adhered to. He says: We are not called upon to say that every possible question arising under the election law may be corrected in this way. It is enough that the principle contained in The People v. Ferguson sustains the ruling of the court below. That case has stood the scrutiny of more than a quarter of a century, and has neither been disturbed by the new Constitution nor the repeated revision of the election law. I see nothing in the present case that requires us to depart from it." He adds, and what he says is as applicable to the present case as the one then under consideration: "Nor is there any danger to be apprehended to the security of our institutions by pursuing this practice. The right to an office is no higher than a right to life, liberty or property. There is no principle that should withdraw the first from the cognizance of a court and jury, to the exclusion of the last. Both will, indeed, be safe under the administration of the ordinary tribunals." We think, therefore, the charge of the judge at the circuit, that it was to be determined upon the evidence adduced which candidate had the most lawful votes, and if they found that the defendant had the greatest number of legal votes, then he was entitled to the office, and their verdict should be in his favor, was correct, and that the verdict on that ground should not be disturbed. The motion to strike out the testimony of Conrad Hoch was properly denied. It was for the jury to say, from the whole testimony, whether, in fact, his vote had been given to the relator. He stated unequivocally that he voted for Smith, and, on crossexamination, he testified that it was said Smith's name was on the ticket; that was all he knew about it. It was for the jury to say, from all the circumstances related by him, whether or not he voted for the relator. We are to assume that they believed he did. The objections taken to the refusal of the motion to strike out the testimony of Shoat cannot, we think, be sustained. The witness had testified that he did not know whether he voted or not for Smith, and the other matters stated

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by him may be regarded as wholly immaterial. The other exceptions do not seem to call for any further observation.

It seems to us that the judge was correct in stating to the jury that when it was proven that a man was alien born, and there was prima facie proof that he had never been naturalized, or otherwise became a citizen, the vote given by him must be striken out; and the burden of proving citizenship was either upon the voter or the party claiming his vote to be legal. If the views herein expressed are sound, then this charge was unexceptionable. So was that part of the charge correct in relation to the witness Rivinot, who testified that he was born in France, and had voted, and there was no evidence tending to show that he had ever been naturalized. The judge in that case charged that the legal presumption was that he had been naturalized. No suggestion was made or evidence given, when the witness was on the stand, that he had not been naturalized. He had voted, and the presumption was that he had voted legally. It was not for the court to say, as matter of law, that the vote was illegal. In this state of facts, the presumption was that he was a legal voter, not that he had committed a crime. On the same ground the court might have been asked, if he had stated he was native born, that his vote be excluded because it was not proven he had attained the age of twenty-one years. The legal presumption would be that he had legally exercised the privilege of voting, until some facts appeared which would raise a contrary presumption.

The judgment appealed from should be affirmed with costs.

SELDEN, J. This action, like the action of quo warranto, and the proceeding by information in the nature of quo warranto, where the defendant is in the exercise of the duties of an office, involves the question of his right to exercise those duties, and the burden of proof rests upon him to establish his right. "The trial is had upon the right of the party holding the office." (4 Cow., 323; Cole on Quo Warranto, 221.) Where, as in the present case, the relator is a claimant of the office, and a party to the action, the trial also involves his